Opinion
8574/2004.
Decided February 3, 2005.
In December 2003, plaintiff began working at defendant Homebridge Mortgage as a loan processor; in March 2004 she resigned. Thereafter, she commenced this action to recover damages for alleged sexual discrimination in creating a hostile workplace (first cause of action), gender discrimination (second cause of action), unlawful retaliation as a result of her complaints of the alleged acts of sexual harassment committed by defendant Scott Harris and defendant Jordan M. Harris (third cause of action), and seeks to impute liability to the corporate defendants and other individual defendants (fourth cause of action).
Pursuant to New York State Human Rights Laws (Executive Law § 296[a]) and New York City Human Rights Laws (§ 8-107 et seq. of the Administrative Code of the City of New York), it is unlawful for an employer to discriminate in its employment practices against any person on the basis of sex or gender. Title VII of the Civil Rights Act of 1964 ( 42 USC § 2000e et seq.) (Title VII) also prohibits discrimination on the basis of sex or gender. Since the standards of proof are the same to prove a claim of discrimination under New York's Executive Law and Title VII, courts apply the same analysis to both types of claims ( see Kremer v. Chemical Constr. Corp., 456 US 461; Lucas v. South Nassau Comm. Hosp., 54 F Supp 2d 141; Constantine v. Kay, ___ NYS2d ___, 2004 WL 3115132).
Sexual discrimination which establishes a hostile work environment constitutes a violation of Title VII and Executive Law § 296 ( see San Juan v. Leach, 278 AD2d 299; Lamar v. Nynex Service Co., 891 F Supp 184). A complaint claiming hostile work environment sexual harassment must allege conduct severe or pervasive enough to create a work environment that a reasonable person would find hostile or abusive; it must allege that the victim subjectively perceived the environment to be hostile; and it must either indicate that a single incident was extraordinarily severe, or that a series of incidents were effectively continuous and concerted to have altered the conditions of the working environment ( see McKinney's Executive Law § 296; San Juan v. Leach, supra; Samide v. Roman Catholic Diocese of Brooklyn, 194 Misc2d 561). Constructive discharge occurs when an employer makes working conditions "so intolerable that [a plaintiff is] forced into an involuntary resignation" ( Clark v. State, 186 Misc2d 896, 898, quoting Pena v. Brattleboro Retreat, 702 F2d 322, 325 [2d Cir. [1983]; see Stetson v. NYNEX Serv. Co., 995 F2d 355).
Moreover, the alleged harassment can be imputed to the corporate employer and can result in imposition of direct liability based upon the conduct of a supervisor, officer or director of the corporation ( see Vitale v. Rosina Food Prods., Inc., 283 AD2d 141; San Juan v. Leach, supra; Father Belle Community Ctr. v. New York State Div. of Human Rights, 221 AD2d 44, lv to appeal denied 89 NY2d 809; Herlihy v. Metropolitan Museum of Art, 214 AD2d 250; Kersul v. Skulls Angels, Inc., 130 Misc2d 345). Furthermore, a coemployee may be individually subject to liability under Section 296(6) of the Executive Law if he or she has an ownership interest in the corporate employer, has the authority to do more than simply carry out personnel decisions made by others, or if he or she directly participated in the unlawful conduct, regardless of his or her status in the corporation ( see Patrowich v. Chemical Bank, 63 NY2d 541; Murphy v. ERA United Rlty., 251 AD2d 469; Steadmen v. Sinclair, 223 AD2d 392; Curran v. All Waste Sys., 213 F3d 625, No. 99-9250, text at 2000 WL 639999]; Bass v. World Wrestling Fedn. Entertainment, Inc., ( 129 F Supp 2d 491).
In her verified complaint, plaintiff alleges that Scott Harris routinely subjected her to offensive and demeaning physical contacts and derogatory and lascivious verbal assaults, which included inappropriately rubbing his hands along her back, neck and shoulders and grabbing her hair. Plaintiff also alleges that Scott Harris, while speaking with others in the office, referred to her as "a Black Bitch" and routinely yelled demeaning and offensive comments about her in the presence of other employees. Such comments included asking aloud about whether and how often she had sex with her boyfriend.
Plaintiff further alleges that Jordan M. Harris and Scott Harris created and sustained a hostile work environment by routinely referring to her aloud for office personnel to hear as a "snail" and as "escargot." This treatment from her managers, plaintiff contends, invited and caused her office mates to treat her with contempt and disrespect.
According to the allegations in the verified complaint, when plaintiff communicated to Scott Harris that his conduct was offensive, and expressed her unhappiness and frustration about the treatment she was receiving, he usually responded by laughing and stating that he was just having fun. Similarly, plaintiff alleges, Jordan M. Harris and Scott Harris, often told her to "calm down" and "toughen up", suggesting that she learn to accept their behavior as a condition of her employment at Homebridge.
Plaintiff also asserts that John M. Harris and Scott Harris subjected her to a hostile work environment based on her gender. Plaintiff alleges that she was often required to work long hours and to stay late, although she expressed that as a single parent she had to leave the office by a certain time. Plaintiff alleges that as a result of the hostile work environment created by the defendants, she was constructively discharged from her employment at Homebridge. Plaintiff also alleges that the other named defendants had actual or constructive knowledge of the discriminatory acts of John M. Harris and Scott Harris, but took no action to terminate or abate the conditions which caused the hostile work environment.
On a motion to dismiss for insufficiency, the allegations set forth in the complaint are assumed to be true and construed in the light most favorable to the plaintiff by giving her the benefit of all favorable inferences which can be drawn in the pleading ( Leon v. Martinez, 84 NY2d 83; Underpinning Found. Constructors, Inc. v. Chase Manhattan Bank, 46 NY2d 459). Since the plaintiff's burden to survive a motion to dismiss is de minimis, and the complaint alleges serious and offensive acts by Scott Harris, a supervisor, the plaintiff has sufficiently stated a cause of action for hostile work environment sexual discrimination which can be imputed to Homebridge ( see San Juan v. Leach, supra; see also Vekiarellis v. Pall Corp., 302 AD2d 377; Sangermano v. Board of Coop. Educ. Servs. of Nassau County, 290 AD2d 498, lv dismissed 99 NY2d 531; Vitale v. Rosina Food Prods., supra).
The claims of gender discrimination are also sufficient, as it can be inferred from the allegations that plaintiff was forced to work long and late hours, while similarly-situated male employees were not. Similarly, the allegations that plaintiff was referred to pejoratively in the presence of co-workers, at this stage in the action, are sufficient to state a claim that plaintiff's job conditions and work environment were altered resulting in a constructive discharge ( see Forrest v. Jewish Guild for the Blind, 3 NY3d 295; Matter of Imperial Diner, Inc. v. State Human Rights Appeal Bd., 52 NY2d 72; Matter of Pace Coll. v. Commission on Human Rights of the City of NY, 38 NY2d 28).
Plaintiff alleges that defendant Nicholas Bratsafolis and defendant Jim Clooney are owners of Homebridge, and Scott Harris and Jordan M. Harris directly participated in the harassment. Thus, for pleading purposes, plaintiff has sufficiently stated a cause of action against these individual defendants for alleged violations of the Human Rights Law. Thus, the motion is denied as to these defendants.
Plaintiff's cause of action for retaliation must be dismissed. To sustain the cause of action for retaliation, plaintiff must allege that she participated in a protected activity known to defendants, an adverse employment action was taken against her, and allege a causal connection between the adverse action and the protected activity ( see Forrest v. Jewish Guild for the Blind, supra; Romney v. New York City Tr. Auth., 8 AD3d 254). Fatal to plaintiff's claim is that there are no allegations that she participated in a protected activity, such as filing a complaint with the New York State Commission on Human Rights or with the Equal Employment Opportunity Commission ( see e.g., Romney v. New York City Tr. Auth., supra; Constantine v. Kay, supra). Therefore, the complaint fails to state a cause of action for retaliation.
The complaint also does not contain any allegations that defendant Michelle Bratsafolis, defendant David I. Pankin, defendant Paul A. Levine or defendant Phil Reilly is an owner of Homebridge or directly participated in the allegedly unlawful conduct. Therefore, the complaint fails to state a cause of action upon which relief can be granted in plaintiff's favor against these defendants.
Finally, plaintiff has not made any allegations to warrant treating any of the Homebridge employees as employees of defendant Tam Equities, Inc. or as employees of defendant Hometrust Mortgage Bankers ( see Germakian v. Kenny Int'l Corp., 151 AD2d 342, appeal denied 74 NY2d 615 [factors weighed in determining whether a company should be considered an employer under the Human Rights Law are the power to hire and fire, control over the employee's work, and payment of wages]; see also State Div. of Human Rights v. GTE Corp., 109 AD2d 1082; Bayard v. Riccitelli, 952 F Supp 977). Consequently, the complaint must be dismissed as asserted against these defendants.
Accordingly, the motion is granted to the extent of severing and dismissing the fourth cause of action for retaliation, and severing and dismissing the entire complaint as asserted against defendants Tam Equities, Inc., Hometrust Mortgage Bankers, Michelle Bratsafolis, David I. Pankin, Paul A. Levine and Phil Reilly. The motion is otherwise denied.