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noting that " predicate requirement of aider-and-abettor liability is a finding of primary liability as to the employer"
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10 Civ. 2332 (JLC)
02-01-2011
SANDY NICHOLSON, Plaintiff, v. THE STAFFING AUTHORITY, ALLOY, INC., ARI ALEXENBURG, and TREY DAVIS, Defendants.
MEMORANDUM AND ORDER
JAMES L. COTT, United States Magistrate Judge.
In this employment discrimination case, plaintiff Sandy Nicholson ("Plaintiff" or "Nicholson") alleges that defendants The Staffing Authority ("Staffing Authority"), Alloy, Inc. ("Alloy") (together, the "Corporate Defendants"), and Ari Alexenburg ("Alexenburg") discriminated against her on the basis of race, subjected her to a hostile work environment, and retaliated against her in violation of federal, state, and city laws. By Order dated November 12, 2010 (and subsequent to a conference on November 10, 2010), the Court directed the parties to brief the basis for imposing individual liability as to Alexenburg in an effort to determine whether subject matter jurisdiction exists as to the claims against him. (Doc. No. 18). Plaintiff submitted a letter brief to the Court on November 24, 2010, and Alexenburg, proceeding pro se, responded by letter, dated December 10, 2010. Alloy and the Staffing Authority submitted a letter, dated December 3, 2010.
Complaint dated March 16, 2010 (Doc. No. 1).
The parties have consented to my handling the case for all purposes pursuant to 28 U.S.C. § 636(c) (Doc. No. 14).
Counsel has recently filed a Notice of Appearance on Alexenburg's behalf (Doc. No. 21).
The Court finds that, while there is no viable claim under Title VII of the Civil Rights Act of 1964, Alexenburg faces potential liability under Section 1981 of the Civil Rights Act, the New York State Human Rights Law, and the New York City Human Rights Law. The Court grants Plaintiff leave to amend her complaint to assert claims for aider and abettor liability under the applicable State and City laws.
42 U.S.C. $ 2000e et seq.
Id. § 1981.
N.Y. Exec. Law § 296, et seq. (McKinney 2010).
N.Y. City Admin. § 8-107, et seq. (McKinney 2010).
I. The Claims Asserted
In deciding whether subject matter jurisdiction exists pursuant to Federal Rule of Civil Procedure 12(b)(1), the Court must accept as true the factual allegations in the Complaint, but need not draw inferences in favor of the party asserting such jurisdiction. Plaintiff bears the burden of demonstrating "by a preponderance of the evidence" the existence of subject matter jurisdiction.
Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008).
Id.
A. Federal Claims
1. Section 1981 of the Civil Rights Act
The first count of the Complaint alleges that Defendants violated Section 1981 of the Civil Rights Act. Section 1981 protects the right of "[a]ll persons within the jurisdiction of the United States . . . to make and enforce contracts," including employment agreements, irrespective of race. The Second Circuit has stated that "individuals may be held liable under § 1981." A viable Section 1981 claim alleges that the individual defendant was personally involved in discriminating against the plaintiff. Because the Complaint alleges that Alexenburg discriminated against Nicholson on the basis of race, this claim is legally cognizable.
42 U.S.C. § 1981(a); Compl. ¶¶ 44-47.
42 U.S.C. § 1981(a), (b); see Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 474-75 (2006) ("Section 1981 offers relief when racial discrimination blocks the creation of a contractual relationship, as well as when racial discrimination impairs an existing contractual relationship . . ..").
Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir. 2000); see Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 226 (2d Cir. 2004).
Patterson, 375 F.3d at 229; Stevens v. New York, 691 F. Supp. 2d 392, 401 (S.D.N.Y. 2009).
The Court notes that the Complaint alleges a single incident of discriminatory conduct by Alexenburg. Specifically, Nicholson alleges that Alexenburg inadvertently left a voicemail message on her answering machine twice referring to her as a "fucking nigger." Nicholson allegedly had no further interactions with Alexenburg.
Compl. ¶¶ 21-22.
Accepting the allegations in the Complaint as true, Alexenburg's conduct, though plainly offensive, may be insufficient to demonstrate that Nicholson's work environment was "permeated with discriminatory intimidation, ridicule, and insult . . . sufficiently severe or pervasive to alter the conditions of [her] employment." Though courts have recognized that "'no single act can more quickly alter the conditions of employment than the use of an unambiguously racial epithet such as 'nigger,'" single or infrequent use of such language does not establish that the work environment is hostile. Courts typically find that a hostile work environment exists only where the "racially-harassing comment is one of many facially-motivated comments." The Court is thus not opining on whether Plaintiff's hostile work environment claim will ultimately pass muster against Alexenburg. For subject matter jurisdiction purposes, however, the claim is legally cognizable.
Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) (quoting Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 778 (1998)). See Kaytor v. Elec. Boat Corp., 609 F.3d 537, 547 (2d Cir. 2010); Desir v. Concourse Rehab. & Nursing Ctr., No. 06 Civ. 1109 (LAK), 2008 WL 756156, at *6 (S.D.N.Y. Mar. 21, 2008) ("Unless they are sufficiently severe to alter the terms and conditions of employment, isolated incidents usually do not rise to the level of a hostile work environment.").
Bailey v. Colgate-Palmolive, Co., No. 99 Civ. 3228 (CBM), 2003 WL 21108325, at *23 (S.D.N.Y. May 14, 2003) ("quoting Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (1993)).
Cruz, 202 F.3d at 570.
Fleming v. Maxmara USA, Inc., 371 Fed. App'x 115, 118 (2d Cir. 2010) (summary order) (single instance of derogatory comment not hostile work environment). See also Saqib v. Stein deVisser & Mintz, P.C., 09 Civ. 4624, 2010 WL 2382253, at *1 (2d Cir. June 15, 2010) (summary order) (single reference to Middle Eastern plaintiff as "look[ing] like a terrorist" not hostile work environment); Carter v. New Venture Gear, Inc., 310 Fed. App'x 454, 458 (2d Cir. 2009) (summary order) (note to African-American employee stating "get out we do not want you here" too infrequent and insufficient to create hostile work environment); Williams v. Cnty. of Westchester, 171 F.3d 98, 101 (2d Cir. 1999) ("[E]vidence solely of 'sporadic racial slurs' does not suffice.") (quoting Schwapp, 118 F.3d at 110)); Liburd v. Bronx Lebanon Hosp. Center, No. 07 Civ. 11316 (HB), 2009 WL 900739, at *8 (S.D.N.Y. Apr. 3, 2009), aff'd 372 Fed. App'x 137 (2d Cir. 2010) (granting summary judgment where employer three times referred to plaintiff as "black ass") (summary order); Kaur v. New York City Health and Hosps. Corp., 688 F. Supp. 2d 317, 338 (S.D.N.Y. 2010) ("The two obviously racist comments, though deplorable, are not of sufficient severity to alter the terms and conditions of Plaintiff's employment."); Lessambo v. PricewaterhouseCoopers, L.P., 08 Civ. 6272 (WHP), 2010 WL 3958787, at *11 (S.D.N.Y. Sept. 27, 2010) (three offensive remarks regarding national origin of plaintiff not hostile work environment); Burchette v. Abercrombie & Fitch Stores, Inc., No. 08 Civ. 8786 (RMB) (THK), 2010 WL 1948322, at *12 n.7 (S.D.N.Y. May 10, 2010) (allegations of isolated events not "sufficiently severe to warrant a finding of harassment") (internal quotations omitted); Hill v. Rayboy-Brauestein, 467 F. Supp. 2d 336, 360-61 (S.D.N.Y. 2006) (no hostile work environment claim where plaintiff called "nigger" and "retard" twice over eighteen months).
2. Title VII of the Civil Rights Act
Nicholson's second claim for relief alleges a violation of Title VII of the Civil Rights Act. Title VII makes it unlawful for an employer to "discriminate against any individual with respect to [ ] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin." In her letter brief to the Court, Plaintiff concedes that Tomka v. Seiler precludes individual liability on a Title VII claim. Accordingly, this claim against Alexenburg is dismissed for lack of subject matter jurisdiction.
42 U.S.C. § 2000e; Compl. ¶¶ 48-51.
66 F.3d 1295, 1317 (2d Cir. 1995); see also Stevens, 691 F. Supp. 2d at 397 (citing cases).
B. State Law Claim
The third claim for relief alleges liability under the New York State Human Rights Law (the "NYSHRL"), which prohibits an employer from discriminating on the basis of race, creed, color, or sexual orientation. In Patrowich v. Chemical Bank, the New York Court of Appeals defined "employer" narrowly to include only an individual "shown to have an ownership interest in [the business employing the plaintiff] or power to do more than carry out personnel decisions made by others." The factors a court may consider under the second prong, known as the "economic reality test," include "'whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.'"
N.Y. Exec. Law § 296; Compl. ¶¶ 52-55.
Id. § 296(1)(a).
63 N.Y.2d 541, 542, 473 N.E.2d 11 (1984); accord, Tomka, 66 F.3d at 1317; Prince v. Madison Square Garden, 427 F. Supp. 2d 372, 385 (S.D.N.Y. 2006) (NYSHRL claim proceeds under section 296(1) against individual defendants with "power to hire and fire" plaintiff, including supervisor who allegedly participated in decision to terminate plaintiff).
Herman v. RSR Sec. Servs., Ltd., 172 F.3d 132, 139 (2d Cir. 1999) (quoting Carter v. Dutchess Cmty. Coll., 735 F.2d 8, 12 (2d Cir. 1984)).
The Corporate Defendants correctly assert that, under the facts alleged in the Complaint, Alexenburg is not an "employer." Although Alexenburg, a part-time Staffing Authority employee, was alleged to have been Nicholson's "direct supervisor," there is no allegation that he held an ownership interest in either Alloy or the Staffing Authority, had the power to hire or fire Nicholson, or controlled her schedule or salary. Instead, the Complaint alleges that "Alloy controlled the Staffing Authority's employment records, including payroll and taxes; controlled the hiring and firing of Staffing Authority employees and agents; and controlled the day-to-day operations of the business of the Staffing Authority." The Complaint further alleges that Trey Davis, another employee, and the Corporate Defendants together decided to terminate Nicholson's employment in retaliation for complaining. There is no allegation that Alexenburg participated in such decision - a fact similarly detrimental to the retaliation claim against him.
See Letter from Michael P. Pappas, dated December 3, 2010, at 1.
Compl. ¶ 8.
Id. ¶¶ 8, 10.
Plaintiff has advised the Court that she intends to dismiss without prejudice Trey Davis, a named defendant in this action. On or about October 12, 2010, the attempted filing of a stipulation of voluntary dismissal was rejected by the Clerk's Office (Doc. No. 13). Per the Court's November 12, 2010 Order, (Doc. No. 18), Plaintiff is directed to either voluntarily dismiss, or submit a stipulation of discontinuance, as to Davis no later than February 14, 2011.
Compl. ¶¶ 41-42.
Recognizing the potential vulnerability of her claims as pled, Plaintiff requests leave to amend the Complaint to assert an aider-and-abettor theory of liability against Alexenburg. Defendants oppose the proposed amendment as futile, arguing that Alexenburg could not have aided and abetted his own conduct. In addition to holding an employer liable for its discriminatory conduct, the NYSHRL makes it unlawful for an employee to "aid, abet, incite, compel or coerce" a violation of the statute. A predicate requirement of aider-and-abettor liability is a finding of primary liability as to the employer.
Letter from Nathaniel B. Smith, dated November 24, 2010 ("Smith Letter"), at 2.
Letter from Michael P. Pappas, dated December 3, 2010, at 2.
Schanfield v. Sojitz Corp. of Am., 663 F. Supp. 2d 305, 344 (S.D.N.Y. 2009) (quoting Sowewimo v. D.A.O.R. Sec., Inc., 43 F. Supp. 2d 477, 490 (S.D.N.Y. 1999)); Gallo v. Alitalia-Linee Aeree Italiane-Societa per Azioni, 585 F. Supp. 2d 520, 546 (S.D.N.Y. 2008) ("Before accessorial liability can be found as to an alleged aider and abettor, the plaintiff must first establish liability as to the employer/principal.").
Although Defendants correctly assert that an individual cannot aid and abet his own discriminatory conduct, a co-worker/non-employer may be liable as an aider-and-abettor if he "primarily and directly perpetrated the harassment." In Tomka, the Second Circuit reversed the district court's grant of summary judgment in favor of three individual defendants alleged to have sexually assaulted a female co-worker. Notably, the defendants had no ownership interest in the employer, did not have the ability to hire or fire the plaintiff, or participate in the decision to terminate her in retaliation for complaining. The appellate court explained that an individual who "actually participates in the conduct giving rise to a discrimination claim" may be liable as an aider and abettor, regardless of the individual's authority to hire or fire the plaintiff.
Raneri v. McCarey, 712 F. Supp. 2d 271, 282 (S.D.N.Y. 2010) ("An individual cannot aid and abet his own alleged discriminatory conduct."); JGIII v. Cord, No. 08 Civ. 5668 (KMW), 2009 WL 2986640, at *12 n.5 (S.D.N.Y. Sept. 17, 2009) ("Individuals cannot be liable for aiding and abetting their own discriminatory conduct."); Virola v. XO Commc'ns, Inc., No. 05 Civ. 5056 (JG) (RER), 2008 WL 1766601, at *20 (E.D.N.Y. Apr. 15, 2008) ("An individual may not be held liable for aiding and abetting his own discriminatory conduct but only for assisting another party in violating the NYHRL."); Chamblee v. Harris & Harris, Inc., 154 F. Supp. 2d 670, 677 (S.D.N.Y. 2001) ("[P]rimary actor cannot be aider and abettor of his own actions.") (citing Hicks v. IBM, 44 F. Supp. 2d 593, 600 (S.D.N.Y. 1999)); Strauss v. New York State Dep't of Educ., 26 A.D.3d 67, 73, 805 N.Y.S.2d 704 (3d Dep't 2005) ("[W]e hold that individuals cannot be held liable under Executive Law § 296(6) for aiding and abetting their own violations of the Human Rights Law.").
Tomka, 66 F.3d at 1317.
Id.
Id.
Id. at 1317.
Subsequently, in Feingold v. New York, the Second Circuit considered the extent of aider and abettor liability in the context of discriminatory conduct arising from harassing comments in the workplace. In that case, the circuit court reversed the district court's grant of summary judgment to three defendants - each administrative law judges - alleged to have discriminated against the plaintiff - also an administrative law judge - by making anti-Semitic and anti-gay remarks. Citing Tomka, the court found that a genuine issue of fact existed "as to whether each of the named individual defendants 'actually participate[d]' in the conduct giving rise to" the discrimination claims, and that the defendants could be found liable for aiding and abetting the employer in creating a hostile work environment.
366 F.3d 138 (2d Cir. 2004).
Id. at 144-45.
Id. at 158; see also Cohn v. Keyspan Corp., 713 F. Supp. 2d 143,160 (E.D.N.Y. 2010) (co-workers with no supervisory authority over plaintiff or ownership interest in employer could be liable as aiders and abettors for participating in discrimination); Hargett v. Met. Transit Authority, 552 F. Supp. 2d 393, 407 (S.D.N.Y. 2008) (NYSHRL imposes liability on individual with no ownership interest in employer, ability to make personnel decisions, or who "actually participated in the conduct giving rise to the discrimination") (citing Tomka, 66 F.3d at 1317).
Although courts have disagreed as to the reach of aider and abettor liability under Tomka, a claim under the NYSHRL is cognizable against an individual, such as Alexenburg, who is alleged to have participated in the discrimination, even though he may not have an ownership interest in the employer, or possess the "power to do more than carry out personnel decisions made by others." Although the NYSHRL claim in its current iteration must be dismissed for lack of subject matter jurisdiction, as explained herein, infra section II, Plaintiff is permitted to amend the Complaint for the limited purpose of asserting aider-and-abettor liability under the NYSHRL.
Tully-Boone v. North Shore-Long Island Jewish Hosp. Sys., 588 F. Supp. 2d 419, 427 (E.D.N.Y. 2008) (recognizing "that the Tomka interpretation of § 296(6) is not without controversy"); Lippold v. Duggal Color Projects, Inc., No. 96 Civ. 5869 (JSM), 1998 WL 13854, at *3 (S.D.N.Y. Jan. 15, 1998) (Tomka "creates a strange and confusing circularity where the person who has directly perpetrated the [unlawful discrimination] only becomes liable through the employer whose liability in turn hinges on the conduct of the direct perpetrator.").
Patrowich, 63 N.Y.2d at 542.
C. City Law Claim
Plaintiff's fourth claim for relief is brought under the New York City Human Rights Law (the "NYCHRL"), which prohibits "an employer or an employee or an agent thereof from discriminating against a person on the basis of, inter alia, race in the employment arena. Nicholson argues that the language of the statute "expressly provides for personal liability" against Alexenburg. In 2005, the New York City Council amended the NYCHRL to require a more liberal construction than its state and federal analogs. Courts are now required to undertake an "analysis . . . targeted to understanding and fulfilling . . . the City's HRL's 'uniquely broad and remedial' purposes, which go beyond those of counterpart State or federal civil rights laws." Some courts have construed this mandate so as to preclude application of federal standards to NYCHRL claims.
N.Y. City Admin. Code § 8-107, et seq. (McKinney 2010).
Id. § 8-107.1(a); Compl. ¶¶ 56-59.
Smith Letter at 2.
Local Civil Rights Restoration Act of 2005, Local Law No. 85 of City of New York (McKinney 2005).
Williams v. N.Y. City Hous. Auth., 61 A.D.3d 62, 872 N.Y.S.2d 27, 31 (2009) (quoting Local Law No. 85 § 7).
Thai v. Cayre Group, Ltd., 726 F. Supp. 2d 323, 337 (S.D.N.Y. 2010) (analyzing retaliation claim under "more permissive NYCHRL standard" than Title VII). But see Kemp v. Metro-North R.R., 316 Fed. App'x 25, at *1 (2d Cir. 2009) (summary order) (applying Title VII and ADA standards to NYCHRL); Ferraro v. Kellwood Co., 440 F.3d 96, 99 (2d Cir. 2006) (NYCHRL standards are "the same as those" under federal law); Pilgrim v. McGraw-Hill Cos., 599 F. Supp. 2d 462, 468 (S.D.N.Y. 2009) ("[T]he standard for all Title VII, section 1981, [New York State Human Rights Law] and [NY]CURL employment discrimination claims is the same.").
Before the 2005 amendment, however, courts applied the Patrowich factors to limit the scope of liability to individuals who held an ownership interest in the employer, or possessed the authority "to do more than carry out personnel decisions made by others." Moreover, the First Department has stated that the NYCHRL was not "intended to afford a separate right of action against any and all fellow employees based on their independent and unsanctioned contribution to a hostile environment." In light of the 2005 amendment, however, it is unclear whether employees can now be held liable as primary violators, regardless of their ownership interest in the employer or the scope of their ability to make personnel decisions.
Lee v. Overseas Shipping Grp., Inc., No. 00 Civ. 9682 (DLC), 2001 WL 849747, at *10 (S.D.N.Y. July 30, 2001); see also Priore v. N.Y. Yankees, 307 A.D.2d 67, 74, 761 N.Y.S.2d 608, 614 (1st Dep't 2003) (NYCHRL includes "fellow employees under the tent of liability, but only where they act with or on behalf of the employer in hiring, firing, paying, or in administering the terms, conditions or privileges of employment.") (internal citations omitted).
Priore, 307 A.D.2d at 74, 761 N.Y.S.2d at 614.
Here, the Court need not reach the issue of whether Alexenburg can be liable as a primary violator under the NYCHRL. Because the language of the NYCHRL's aiding and abetting provision is "virtually identical" to that of the NYSHRL, the two statutes are analyzed under the same standard. Accordingly, the NYCHRL claim, as amended, will be legally cognizable against Alexenburg.
N.Y. City Admin. Code § 8-107.6 (McKinney 2010) ("It shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter, or to attempt to do so.").
Feingold, 366 F.3d at 158 (quoting Dunson v. Tri-Maint. & Contractors, Inc., 171 F. Supp. 2d 103, 113-14 (E.D.N.Y. 2001)).
Feingold, 366 F.3d at 158 (applying same standard to NYSHRL and NYCHRL aiding and abetting claims); Schanfield, 663 F. Supp. 2d at 344 (same).
II. Amendment of the Complaint
As noted, Nicholson requests leave to amend the Complaint to assert claims for aider and abettor theories of liability under the NYSHRL and the NYCHRL. "Generally a complaint that gives full notice of the circumstances giving rise to the plaintiff's claim for relief need not also correctly plead the legal theory or theories and statutory basis supporting the claim." To that end, courts have found that a plaintiff is "not prejudiced by [the] failure to include the exact aider and abettor provision" in a complaint where the facts alleged are "sufficient enough to sustain a claim under [each statute]." In any case, because leave to amend under Rule 15 "shall be freely given when justice so requires," the Court grants Nicholson leave to amend the Complaint to add "aider and abettor" claims under the applicable State and City laws.
Marbury Mgmt., Inc. v. Kohn, 629 F.2d 705, 712 n.4 (2d Cir. 1980).
Duviella, 2001 WL 1776158. at *17 n.12: see McArdle v. Arms Acres, Inc., 2009 WL 755287, at *14 n.17 (S.D.N.Y. Mar. 23, 2009) (rejecting argument that summary judgment should be granted on section 296(6) claim because plaintiff failed to allege such liability in complaint); Maher v. Alliance Mortg. Banking Corp., 650 F. Supp. 2d 249, 261 n.9 (E.D.N.Y. 2009) (same).
III. Conclusion
For the reasons stated herein, the Title VII claim against Alexenburg is dismissed for lack of subject matter jurisdiction. The NYSHRL and NYCHRL claims are also dismissed, but permission is granted to amend the Complaint to add "aider and abettor" claims under both statutes. Nicholson is directed to file and serve an amended complaint asserting claims for aider and abettor liability under the NYSHRL and the NYCHRL no later than February 14, 2011. Dated: February 1, 2011
New York, New York
SO ORDERED:
/s/_________
JAMES L. COTT
United States Magistrate Judge
Copies sent via ECF to:
Nathaniel B. Smith Law Office of Nathaniel B. Smith 111 Broadway - Suite 1305 New York, NY 10006 212-227-7062 Fax: 212-346-4665 Email: natsmith@att.net Michael Peter Pappas Littler Mendelson, P.C. 900 Third Avenue 8th Floor 13 New York, NY 10022 212-832-2691 Fax: 212-832-2719 Email: mpappas@littler.com Gary David Shapiro Littler Mendelson, P.C. 900 Third Avenue 8th Floor New York, NY 10022 (212) 583-2674 Fax: (646)-924-3375 Email: gshapiro@littler.com Jeffrey Ettenger Kaufman Dolowich Voluck & Gonzo 135 Crossways Park Drive Suite 201 Woodbury, NY 11797 (516) 681-1100 Fax: (516) 681-1101 Email: jettenger@kdvlaw.com