Opinion
Index No. 451832/2018
09-18-2019
Michael Alexander, Plaintiff, v. Equinox Holdings LLC d/b/a Equinox Wall Street, Inc. d/b/a Equinox Fitness Club, Defendant.
NYSCEF DOC. NO. 14
Decision and Order
Mot. Seq. No. 001
Hon. James E. d'Auguste, J.S.C.
In Motion Sequence No. 001, defendant Equinox Holdings, Inc. s/h/a "Equinox Holdings LLC d/b/a Equinox Wall Street, Inc. d/b/a Equinox Fitness Club" ("Equinox") moves for an order, pursuant to CPLR 3211(a)(2) and (7), dismissing plaintiff Michael Alexander's verified complaint. The basis for the motion is that Alexander lacks standing to assert employment discrimination claims against Equinox under the New York City Human Rights Law ("NYCHRL"), title 8 of the New York City Administrative Code, because he was not acting within the scope of his employment, but rather was acting in his personal capacity as a member of Equinox, and therefore not a covered employee under the statute at the time the alleged events transpired. For the reasons stated herein, Equinox's motion is granted and Alexander's complaint is dismissed in its entirety.
Background
In this action for employment discrimination and retaliation, Alexander was employed for approximately four months working as a front desk employee for Equinox at its 14 Wall Street location in Manhattan ("Equinox Wall Street"). NYSCEF Doc. No. 1, ¶ 3. His duties and responsibilities as a front desk employee involved checking in members at Equinox's front desk and booking and scheduling these members for various group fitness classes. Id., ¶ 4.
On or about May 21, 2018, approximately one month into his employment with Equinox, Alexander observed a member "pleasuring himself" while in the steam room. Id., ¶ 9. Alexander alleges that Equinox has been aware of instances of sexual activity between and among the gym's members in their steam rooms for several years. Id., ¶ 10 & n.1. Alexander immediately notified the manager on duty and the spa manager. Id., ¶ 11. The verified complaint states that, in response, Equinox Wall Street's general manager instructed Alexander not to fill out an incident report or file a complaint with Human Resources. Id., ¶ 12.
On or about June 19, 2018, approximately three weeks after the alleged steam room incident, Alexander inquired about medical leave from the front desk manager. Id., ¶ 16. On or about June 26, 2018, Equinox's Human Resources provided Alexander with medical leave benefits and information. Id., ¶ 17.
In or about mid-July 2018, while on medical leave, Alexander requested to transfer to a different Equinox location, but never received a response from the general manager. Id., ¶¶ 18-19. Throughout August 2018, Alexander corresponded with Equinox's Human Resources about transferring to another location instead of returning to Equinox Wall Street at the end of his medical leave. Id., ¶¶ 20-22.
On August 25, 2018, Alexander was quoted anonymously in a New York Post article discussing the May 21 incident at Equinox. Id., ¶ 23 & n.2. On or about August 27, 2018, Alexander met with an Equinox human resources specialist and the general manager, individually, about the New York Post article. Id., ¶¶ 24-25. That same day, while Alexander was working out at Equinox Wall Street, the general manager escorted Alexander to his locker and then to his office and "told him he was not allowed to be in the gym (or any Equinox location)." Id., ¶ 26. On or about August 31, 2018, less than a week after the New York Post article was published, Alexander received his termination notice. Id., ¶ 27 & n.3.
On November 6, 2018, Alexander filed the instant action alleging that Equinox maintained "a hostile work environment replete with unwelcome sexual advances by Equinox members" and discriminated against him on the basis of sex in violation of NYCHRL § 8-107(1)(a). Id., ¶ 31. Alexander also alleges that Equinox retaliated against him "for complaining about the sexual harassment by terminating [his] employment at Equinox" in violation of NYCHRL § 8-107(7) (alleged as a violation of the same section of the Administrative Code of the City of the New York). Id., ¶ 37.
In support of the instant motion, Equinox argues that the purported sexual conduct to which Alexander was exposed in the steam room on May 21, 2018 occurred at a time and place in which Alexander was present not in his capacity as an employee of Equinox, but rather while he was off-duty and on the premises and in the steam room in his capacity as a customer of Equinox witnessing another customer of Equinox engaging in a sexual activity. Therefore, Equinox contends, Alexander lacks standing under the NYCHRL in relation to this alleged event.
In support of this argument, Equinox states that Alexander's duties as a front desk employee had nothing to do with the steam room. Additionally, Equinox asserts that Alexander, on two different occasions, admitted that the alleged hostile work environment occurred while he was using the steam room as a member of Equinox on his own personal time—the first, in a New York Post article annexed to the verified complaint (Id., ¶ 27, n.3) and the second, in a separate personal injury lawsuit based on the same allegations contained in the instant lawsuit (NYSCEF Doc. No. 6, ¶¶ 141-58).
In opposition, Alexander argues that he was a victim of customer sexual harassment in the steam room and points out that Equinox's motion does not include any case law. Further, Alexander argues that he complained about the customer sexual harassment on two occasions, both of which, Alexander argues, were protected activities - first to his manager in May 2018 and then in the newspaper in August 2018 - and that he was terminated from his employment in retaliation for these complaints. Alexander also argues that even if he was present on the premises and in the steam room as a member of Equinox, his membership was a form of employee benefit and therefore arises from his employment.
Discussion
Plaintiff's Harassment Claim
Alexander is correct that the NYCHRL protects employees from sexual harassment perpetrated against an employee by a customer of the employer, as well as by other employees of the employer. However, that is not what is alleged in the present case. Rather, even though the NYCHRL eliminated the "severe or pervasive" standard in 2009, Alexander's claim of a hostile work environment due to his exposure to a single incident of sexual conduct by a customer, while himself present in a non-employee customer capacity, is without merit under the NYCHRL.
The NYCHRL provides a private right of civil action to a "person aggrieved" by an "unlawful discriminatory practice" as defined by chapter 1 of the NYCHRL, or by an "act of discriminatory harassment" as set forth in chapter 6 of the NYCHRL. As a threshold matter, therefore, the Court must determine if Alexander is a "person aggrieved" as defined by the NYCHRL under the circumstances alleged in the complaint and described in plaintiff's papers in opposition to the motion. The Court finds he is not.
NYCHRL § 8-502(h)(1) states:
The term "person aggrieved" includes a person whose right created, granted or protected by chapters 1 or 6 of this title is violated by a covered entity directly or through conduct of the covered entity to which the person's agent or employee is subjected while the agent or employee was acting, or as a result of the agent or employee having acted, within the scope of the agency or employment relationship. (emphasis added)
Alexander does not allege he was subjected to a violation of a right under the NYCHRL while he was acting, or as a result of him having acted, within the scope of his employment relationship with Equinox. Rather, Alexander alleges a violation of a right by a non-employee of defendant while plaintiff was admittedly acting, or as a result of plaintiff having acted, outside the scope of his employment relationship. Specifically, plaintiff alleges he was exposed to sexual conduct by a non-employee customer while Alexander was off-duty and present at that time and place solely in his capacity as another non-employee customer. In other words, plaintiff was a customer who was allegedly sexually harassed by another customer, which is not a cognizable claim for employment discrimination under the NYCHRL.
Notably, the cases upon which Alexander relies in opposition to the instant motion are distinguishable from the case at bar. Each of the cases cited by plaintiff involve an "on-duty" employee who was acting in the scope of his or her employment and subjected to the allegedly offensive conduct by a customer as a result of that employment. See Swiderski v. Urban Outfitters, Inc., 2017 WL 6502221, at *1-2 (S.D.N.Y. Dec. 18, 2017) (explaining that the plaintiff, who was a sales associate at an Urban Outfitters store, was subjected to customer harassment while she was assisting a customer); Creacy v. BCBG Max Azria Grp., LLC, 2017 WL 1216580, at *1-3 (S.D.N.Y. Mar. 31, 2017) (explaining that the plaintiff, who was in charge of the BCBG shop within a Lord & Taylor department store, was subjected to customer harassment while she was assisting customers). None of these situations exist in the present case.
Contrary to the above cases, Alexander is not alleging he was subjected to sexually offensive conduct by a customer while plaintiff was acting in his capacity as an employee of Equinox. Rather, it is undisputed that plaintiff was present in the steam room in his capacity as a fellow fitness club member, which holds true even if his membership to the club was a benefit extended to him by virtue of his employment.
Under these circumstances, Alexander was not an "aggrieved person" as defined under the NYCHRL, nor was he subjected to an "unlawful discriminatory practice" or an "act of discriminatory harassment" as an employee of this employer as required by the NYCHRL to sustain these causes of action. Accordingly, Alexander's causes of action for discrimination and harassment based on sex are dismissed.
Plaintiff's Retaliation Claim
To establish a prima facie case of retaliation under the NYCHRL, a plaintiff must show that (a) plaintiff participated in a protected activity; (b) defendant knew about plaintiff's participation; (c) defendant took an employment action that disadvantaged the plaintiff; and (d) a causal connection existed between the protected activity and the negative employment action. Harrington v City of New York, 157 AD3d 582 (1st Dept. 2018). "The term 'protected activity' refers to action taken to protest or oppose statutorily prohibited discrimination." Fernandez v. Windmill Distributing Co., 159 F. Supp. 3d 351, 367 (S.D.N.Y. 2016) (internal quotation marks and citation omitted) (applying New York law). Further, "[a]n employee engages in a protected activity when he complains of an employment practice that he reasonably believes violates the law." Id. (emphasis added).
Plaintiff alleges that he opposed statutorily prohibited discrimination in violation of the NYCHRL on two occasions - on May 21, 2018 when he complained to his manager about the steam room incident earlier that day, and then on or about August 25, 2018 when he described the incident to a newspaper reporter which was then published. However, neither of these alleged protected activities sustains plaintiff's retaliation claim.
For reasons previously discussed herein, Alexander, in relation to the events giving rise to this complaint, is not an "aggrieved person" covered by the NYCHRL, which is a requirement to sustain a claim for retaliation as well as for discrimination and harassment. NYCHRL §§ 8-502(a)(h), 8-107(7).
Additionally, Alexander's complaints regarding offensive sexual conduct by a non-employee customer, which Alexander admittedly observed while he was off-duty and present solely in his capacity as another non-employee customer, was not a complaint about an unlawful employment practice within the meaning of the NYCHRL. In other words, in relation to the alleged steam room incident, plaintiff was merely a customer complaining about the conduct of another customer, which is not a protected activity under the NYCHRL.
Further, even if the May 2018 complaint to his manager was a protected activity opposing an unlawful employment practice, plaintiff has already acknowledged in his complaint and in his papers opposing the instant motion that he was terminated because of the newspaper article, not because of the complaint to his manager three months prior. For instance, plaintiff states in his complaint that "Mr. Alexander received his termination notice on August 31, 2018 - less than a week after the New York Post article was published." Complaint at ¶27. Plaintiff further states in his papers opposing the instant motion that "[p]laintiff alleges that he was subject to sexual harassment from an Equinox customer...and, was subsequently terminated within days of being interviewed in a newspaper regarding the incident." Plaintiff's Memorandum of Law at p. 7. Accordingly, plaintiff has essentially admitted that there is no causal connection between that purported protected activity (the May 2018 complaint to his manager) and his termination, but rather, that he was terminated for his statements to the newspaper. However, statements made to the press are not a "protected activity" sufficient to support a retaliation claim under the NYCHRL. See, e.g., Fenner v. News Corp., 2013 WL 6244156, at *5, 25 (S.D.N.Y. Dec. 2, 2013) (holding that an employee's statements to a news publication that a purportedly racist cartoon published by his employer "churned [his] stomach" did not pertain to an "employment practice" of the employer and therefore did not constitute a protected activity under the NYCHRL). This is particularly true where, as here, the incident about which the employee made a statement to the newspaper related to customer practices, not employment practices.
Conclusion
Based upon the foregoing, Equinox's motion is granted and the complaint is dismissed in its entirety.
This constitutes the decision and order of this Court. Dated: September 18, 2019
ENTER:
/s/_________
Hon. James E. d'Auguste
(Index No. 451832/18)