Opinion
32001/09.
Decided September 17, 2010.
The plaintiff was represented by: Akin Smith LLC., NY, NY, By: Bryan S. Arce, Esw.
The defendant was represented by: Wilson, Elser, Edelman Dicker, New York, NY, By: Ricki E. Roer, Esq.
Upon the foregoing papers, the motion by defendants Brookdale Hospital Medical Center, Brookdale Hospital Center and Jeremiah Carmody-Trant, a/k/a Jerry Carmody-Trant, individually (collectively, defendants) for an order, pursuant to CPLR 3211 (a)(1) and (7), dismissing the complaint of plaintiff Carlos Santos insofar as asserted against them is denied.
At all relevant times, plaintiff was employed by defendant Diaspora Community Services, Inc. (Diaspora) which provided community outreach services at Brookdale Hospital Medical Center (Brookdale). On or about March 23, 2009, plaintiff began working one day a week for Diaspora as a Case Manager Technician at Brookdale. A Brookdale employee, Jeremiah Carmody-Trant (Jerry), was his supervisor. Plaintiff alleges that, during the course of his employment, he was sexually harassed by Jerry despite complaints which plaintiff made to Diaspora. Although plaintiff was allegedly advised by the director of the Infectious Disease Clinic at Brookdale to file a complaint with the hospital's Human Resources Department in October 2009, the complaint further alleges that he "was so emotionally distressed that he immediately left the hospital." Plaintiff asserts claims for unlawful discriminatory practices pursuant to New York City Administrative Code Title 8, § 8-107 and seeks compensatory and punitive damages.
In their motion, defendants contend that plaintiff's claims against them should be dismissed because they were never his employer. Defendants point to plaintiff's admission that he was employed by Diaspora as a Case Manager and they assert that Diaspora is a separate legal entity which leases space at Brookdale's facility. Defendants further assert that plaintiff never advised Brookdale about his concerns and that, when Diaspora informed Brookdale of plaintiff's resignation and the reason for it, Brookdale encouraged plaintiff to file a complaint, but he refused. Defendants also argue that the "handful of isolated incidents" which plaintiff alleges are insufficient as a matter of law to state a claim based upon a hostile work environment and that he has failed to establish any adverse employment action taken against him by defendants.
In opposition to the motion, plaintiff contends that, since Brookdale "did in fact supervise all aspects of plaintiff's work when he worked at Brookdale," Brookdale was his "joint employer" and Brookdale may be held liable for Jerry's misconduct. With respect to the level of harassment necessary to satisfy the standard under the New York City Human Rights Law, plaintiff maintains that he does not have to allege that there was severe and pervasive misconduct, only the existence of unequal treatment. According to plaintiff, Jerry's words and actions led to his "constructive discharge" and Brookdale may be held vicariously liable for the discriminatory acts of its supervisor without regard to whether its managers knew or should have known of those acts. Plaintiff adds that his refusal to submit to Jerry's sexual advances constituted "protected activity."
In reply, defendants repeat their contention that they were never plaintiff's employer, given that he shared a worksite with Jerry only one day a week and that plaintiff has not alleged that they hired or fired him, paid him or controlled his employment terms and benefits. Defendants also question the viability of a hostile work environment claim based upon allegations that Jerry leered at him and made three isolated comments and they point out that plaintiff has not pled any adverse employment action taken by them in retaliation for his having engaged in some protected activity.
When a motion is based on documentary evidence pursuant to CPLR 3211(a)(1), dismissal of a cause of action is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law ( Turner v Irving Finklestein Meirowitz, LLP , 61 AD3d 849 , 850). Contrary to defendants' contention, the lease agreement and Memorandum of Understanding which they submit do not conclusively establish that plaintiff had no employment relationship with defendants. The lease does not relate to the location where the alleged harassment occurred and the Memorandum of Understanding concerns the exchange of patient information, rather than the terms and conditions of plaintiff's employment.
On a motion to dismiss for insufficiency pursuant to CPLR 3211(a)(7), the allegations set forth in the complaint are assumed to be true and construed in the light most favorable to the plaintiff by giving him or her the benefit of all favorable inferences which can be drawn in the pleading ( Leon v Martinez, 84 NY2d 83). In order to state a claim for hostile work environment sexual harassment, the complaint must assert that plaintiff is a member of a protected class, that the conduct or words upon which the claim of sexual harassment is predicated were unwelcome, that the conduct or words created a hostile work environment which affected a term, condition or privilege of the employment and that the defendant is liable for such conduct ( see Samide v Roman Catholic Diocese of Brooklyn, 194 Misc 2d 561, 5710572 [2003]). Under Federal and New York State Law, a plaintiff must also set forth that the alleged harassment was also sufficiently severe and pervasive enough to create a work environment that a reasonable person would find hostile or abusive ( see Harris v Forklift Sys., 510 US 17, 21-22). This latter element contradicts the purpose of New York City's Human Rights Law where "liability should be determined by the severity and frequency reserved for consideration of damages" ( Farrugia v North Shore Univ. Hosp. , 13 Misc 3d 740 , 749). Here, viewing the facts in a light most favorable to plaintiff, he has sufficiently set forth a sexual harassment claim ( see Williams v New York City Hous. Auth. , 61 AD3d 62 , [2009]). In his complaint, plaintiff alleges how Jerry's leers and comments were "ongoing and pervasive" for seven months. Although the complaint cites three particular comments allegedly made within one week of the start of plaintiff's work at Brookdale, it also refers to more than "a handful of alleged comments or looks", as defendants choose to characterize them.
Administrative Code § 8-107, upon which plaintiff relies, prohibits employers from discharging and discriminating against employees on the basis of certain factors, including gender and sexual orientation. The New York City Human Rights Law does not define the term "employer." It states only what an employer is not: "any employer with fewer than four persons in his or her employ" (Administrative Code § 8-102[5]). In determining whether a defendant is actually the plaintiff's employer for the purpose of that law, courts consider the following elements: (1) whether the proposed employer had the power of the selection and engagement of the employee; (2) whether the proposed employer made the payment of salary or wages to the employee; (3) whether the proposed employer had the power of dismissal over the employee; and (4) whether the proposed employer had the power to control the employee's conduct ( see Strohl v Brite Adventure Center, Inc., 2009 WL 2824585; Robins v Max Mara, U.S.A., Inc., 923 F.Supp. 460, 470). The most important consideration in this analysis is "[w]hether the alleged employee exercised control over the employee's conduct and the incidents of his employment" ( Alie v NYNEX Corp., 158 F.R.D. 239, 246). Plaintiff relies upon Jerry's alleged "supervisory authority" over him for his contention that Diaspora and Brookdale were "joint employers" on the one day a week when plaintiff was present at Brookdale's facility. Considering that this is a pre-answer dismissal motion, rather than a motion for summary judgment, and that the allegations of the complaint, as bolstered by plaintiff's affidavit, are assumed to be true, plaintiff has set forth viable claims of a hostile work environment. Therefore, the motion by defendants is denied.
The foregoing constitutes the decision and order of this court.