Parra v. City of Elizabeth

BRICCETTI

Motion granted in part and denied in part.

Marjorie Mesidor, Nicole Ann Welch, Phillips & Associates, Attorney at Law, PLLC, New York, NY, for Plaintiff. John Martin Flannery, Wilson Elser Moskowitz Edelman & Dicker LLP, Stamford, CT, Lalit Kumar Loomba, Peter Alexander Meisels, Wilson Elser, Moskowitz Edelman & Dicker LLP, White Plains, NY, for Defendants.

BRICCETTI, District Judge.

Plaintiff Jeanette Parra, a Hispanic woman, brings this employment discrimination action alleging defendants (i) subjected her to a hostile work environment based on sexual harassment, (ii) retaliated against her for complaining about such harassment, and (iii) discriminated against her on the basis of her gender and race, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”); the Civil Rights Act of 1866, 42 U.S.C. § 1981 (“ Section 1981”); and the New York Human Rights Law, N.Y. Exec. L. § 290 et seq. (“NYSHRL”).

Now pending is defendants' motion to dismiss the amended complaint. (Doc. # 25).

For the following reasons, defendants' motion is GRANTED in part and DENIED in part.

The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.

The sufficiency of a hostile work environment claim is analyzed both subjectively and objectively. See Harris v. Forklift Sys., Inc., 510 U.S. at 21, 114 S.Ct. 367. In reviewing hostile work environment claims, courts “consider[ ] a variety of factors including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 102 (2d Cir.2010) (citation and internal quotation marks omitted). “Facially [sex-]neutral incidents may be included ... among the totality of the circumstances that courts consider in any hostile work environment claim, so long as a reasonable fact-finder could conclude that they were, in fact, based on sex.” Moll v. Telesector Res. Grp., Inc., 760 F.3d 198, 203 (2d Cir.2014).

Because “individuals are not subject to liability under Title VII,” a successful Title VII claim requires a specific basis to impute harassment liability to an employer. Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 221 (2d Cir.2004). Thus, under Title VII, an employer's liability for workplace harassment “may depend on the status of the harasser.” Vance v. Ball State Univ., ––– U.S. ––––, 133 S.Ct. 2434, 2439, 186 L.Ed.2d 565 (2013). If the harassing employee is a “supervisor,” the employer will be strictly liable for his unlawful conduct unless “(1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) ... the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided.” Id. “If the harassing employee is the victim's co-worker,” however, “the employer is liable only if it was negligent in controlling working conditions.” Id.

Under the NYSHRL, “liability for an employee's discriminatory acts may not be imputed to an employer ... unless the employer became a party to it by encouraging, condoning, or approving it.” Brown v. City of New York, 2013 WL 3789091, at *18 (S.D.N.Y. July 19, 2013).

Here, since Johnson's and Tribble's alleged conduct, if true, was both pervasive and severe, plaintiff has plausibly alleged a hostile work environment. See, e.g., Bethea v. City of New York, 2014 WL 2616897, at *5 (E.D.N.Y. June 12, 2014) (plaintiff police officer plausibly alleged hostile work environment based on sergeant's graphic, persistent sexual taunting).

At issue, then, is whether Johnson's and Tribble's alleged conduct may be imputed to the City under Title VII and the NYSHRL.

Even assuming Johnson and Tribble were plaintiff's co-workers, defendants cannot establish from the pleadings alone that the Department's response to each alleged incident of harassment was reasonable as a matter of law.

To be sure, the Department appears to have investigated a number of plaintiff's complaints reasonably promptly. But the Court cannot deem reasonable as a matter of law the Department's decision to assign plaintiff to Squad 8 with Tribble (against whom she had already filed a sexual harassment complaint) and Johnson (about whom several women had allegedly complained). Nor does Bradley's rationale for assigning plaintiff to Squad 8–that Johnson's and Tribble's comments were “just jokes” and that “enough time had passed” for plaintiff to resume working with them—appear reasonable from the face of the pleadings.

Because plaintiff has plausibly alleged the Department may have been negligent in responding to her complaints of harassment, she has pleaded a basis to hold the City liable for Johnson's and Tribble's conduct under Title VII. And because plaintiff plausibly alleges Bradley condoned her assignment to Squad 8, she has also plausibly alleged the City's liability under the NYSHRL. See Guzman v. Macy's Retail Holdings, Inc., 2010 WL 1222044, at *11 (S.D.N.Y. Mar. 29, 2010) (employer liability plausibly alleged when senior manager to whom plaintiff complained of discrimination “not only refused to investigate but threatened her with termination if she made further complaints”).

In contrast, plaintiff's race-based hostile work environment claims are not plausibly pleaded because plaintiff offers little if any reason to believe defendants' actions had anything to do with her race. See, e.g., Hill v. Rayboy–Brauestein, 467 F.Supp.2d 336, 360 (S.D.N.Y.2006) (“When a person only makes general allegations that African–Americans are treated differently in the workplace, those allegations are insufficient to support a hostile work environment claim.”).

Thus, plaintiff's race-based hostile work environment claims are dismissed. B. Retaliation

A prima facie case of retaliation requires plaintiff to show (i) she engaged in protected activity, (ii) the employer was aware of the activity, (iii) the employer took an adverse action against her, and (iv) a causal connection exists between the protected activity and the adverse action. Feingold v. New York, 366 F.3d 138, 156 (2d Cir.2004). “The onus is on the speaker to clarify to the employer that [s]he is complaining of unfair treatment due to [her] membership in a protected class and that [s]he is not complaining merely of unfair treatment generally.” Aspilaire v. Wyeth Pharm., Inc., 612 F.Supp.2d 289, 308–09 (S.D.N.Y.2009).

“[U]nchecked retaliatory co-worker harassment, if sufficiently severe, may constitute adverse employment action so as to satisfy the second prong of the retaliation prima facie case.” See Richardson v. N.Y. Dep't of Corr. Serv., 180 F.3d 426, 446 (2d Cir.1999), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006).

Here, Bradley allegedly commented that Tribble's past harassment of plaintiff was “just jokes.” And when plaintiff asked to be separated from Johnson and Tribble, Castelli allegedly told her she would have to accept a pay cut. At the motion to dismiss stage, these allegations plausibly suggest Bradley and Castelli intended to punish plaintiff for complaining of discrimination. See id. (unchecked co-worker harassment may represent adverse action for purposes of gender-based retaliation claim).

Thus, plaintiff has stated a claim for gender-based retaliation under Title VII and the NYSHRL.

Because the amended complaint does not plausibly allege plaintiff ever complained of race-based discrimination, however, plaintiff cannot establish a race-based retaliation claim. C. Disparate Treatment

Disparate treatment claims brought under Title VII, Section 1981, and the NYSHRL are all analyzed under the same standard. See, e.g., Bowen–Hooks v. City of New York, 13 F.Supp.3d 179, 209 & n. 19, 2014 WL 1330941, at *16 & n. 19 (E.D.N.Y. Mar. 31, 2014).

To state a claim for race—or gender-based discrimination, plaintiff must allege (i) she is a member of a protected class, (ii) she was qualified for the position she held, (iii) she suffered an adverse employment action, and (iv) the adverse action took place under circumstances giving rise to an inference of discrimination. Reynolds v. Barrett, 685 F.3d 193, 202 (2d Cir.2012).

“If a comparison with another employee is to lead to an inference of discrimination it is necessary that the employee be similarly situated in all material respects.” Staff v. Pall Corp., 233 F.Supp.2d 516, 536 (S.D.N.Y.2002) (internal quotation marks omitted).

Because plaintiff has stated a hostile work environment claim under Title VII and the NYSHRL, she has already plausibly pleaded “a form of gender-based discrimination.” Bermudez v. City of New York, 783 F.Supp.2d 560, 585 (S.D.N.Y.2011). To state a separate gender discrimination claim, plaintiff must plead “a separate and distinct prima facie case,” alleging an adverse action beyond the creation of a hostile work environment. Bethea v. City of New York, 2014 WL 2616897, at *6 (E.D.N.Y. June 12, 2014).

Whereas hostile work environment claims consider the “workplace environment as a whole,” disparate treatment claims require a tangible, “discrete harm[ ] such as hiring or discharge.” Raniola v. Bratton, 243 F.3d 610, 617 (2d Cir.2001).

Here, plaintiff alleges only one plausible adverse action beyond the creation of a hostile work environment: the denial of training opportunities. But plaintiff does not allege she was denied training because of her gender; she alleges defendants denied her training in “retaliation for her complaints about ... unlawful sexual harassment.” (Am. Compl. ¶ 98). Thus, the denial of training provides additional support for plaintiff's successful retaliation claim, but does not plausibly suggest disparate treatment. See Patane v. Clark, 508 F.3d 106, 112 (2d Cir.2007) (“The sine qua non of a gender-based discriminatory action claim under title VII is that the discrimination must be because of sex.” (internal quotation marks omitted)).

Accordingly, plaintiff fails to state a gender discrimination claim under either Title VII or the NYSHRL. See, e.g., Bethea v. City of New York, 2014 WL 2616897, at *6 (plaintiff plausibly stated hostile work environment claim but could not state “separate and additional claim of gender discrimination” based on same facts); Bermudez v. City of New York, 783 F.Supp.2d at 585 (same).

As with gender discrimination claims, race-based disparate treatment claims require a showing of tangible adverse action in areas such as hiring, firing, compensation, and promotion. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 62, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006).

Here, plaintiff alleges she was reprimanded after sharing a police vehicle with a “non-Hispanic male colleague” who was not so reprimanded. Elsewhere, plaintiff alleges Bradley “never responded” to her “requests for assistance” with her complaints, but “routinely responded to such requests ... from similarly situated non-Hispanic male colleagues.” (Am. Compl. ¶ 73).

These allegations are insufficient.

Without more, a reprimand is not an adverse action. Honey v. Cnty. of Rockland, 200 F.Supp.2d 311, 320 (S.D.N.Y.2002) (“[R]eprimands, threats of disciplinary action and excessive scrutiny do not constitute adverse employment actions in the absence of other negative results such as a decrease in pay or being placed on probation.”). And because plaintiff claims she was “harassed” by investigators each time she complained to Bradley, the allegation that Bradley never responded to plaintiff's “requests for assistance” is implausible.

More fundamentally, because plaintiff identifies her “similarly situated non-Hispanic male colleagues” only categorically, she fails to allege a valid comparator, and thus provides no basis to infer she was treated differently because of her race.

Thus, plaintiff fails to state a claim for race discrimination. See Ortega v. N.Y.C. Off–Track Betting Corp., 1999 WL 342353, at *5 (S.D.N.Y. May 27, 1999) (dismissing race-discrimination claim based on conclusory allegations that Hispanic female plaintiff was treated differently from non-Hispanic males).

“[A]n employee may not be individually subject to suit as an employer under Section 296(1) of the [NYS]HRL ‘if he [or she] is not shown to have any ownership interest or any power to do more than carry out personnel decisions made by others.’ ” Lewis v. Triborough Bridge & Tunnel Auth., 77 F.Supp.2d 376, 379 (S.D.N.Y.1999) (quoting Patrowich v. Chem. Bank, 63 N.Y.2d 541, 542, 483 N.Y.S.2d 659, 473 N.E.2d 11 (1984)). Conversely, “individuals may be held liable given sufficient supervisory power.” Dundas v. Convalescent Hosp. for Children, 1995 WL 813721, at *8 (W.D.N.Y. Mar. 9, 1995).

But a co-worker who “lack[s] the authority to either hire or fire the plaintiff” may still be held liable as an aider-abettor under NYSHRL § 296(6) if he “actually participates in the conduct giving rise to a discrimination claim.” Feingold v. New York, 366 F.3d 138, 158 (2d Cir.2004). (internal quotation marks omitted). “In this regard, the individual defendant, who may have personally committed the discrimination, is not held liable for aiding and abetting his own actions, but instead, is deemed liable for aiding and abetting the primary violation by the employer.” Rojas v. Roman Catholic Diocese of Rochester, 557 F.Supp.2d 387, 393–94 (W.D.N.Y.2008). “[A] supervisor's failure to take adequate remedial measures” in response to a complaint of discrimination has been deemed “actual participation” under NYSHRL § 296(6). Lewis v. Triborough Bridge & Tunnel Auth., 77 F.Supp.2d at 379.

The amended complaint plausibly alleges primary liability as to Castelli and Bradley, and aider-abettor liability as to Johnson, Tribble, Castelli, and Bradley.

As to primary liability, plaintiff plausibly alleges Castelli and Bradley “recklessly disregarded [her] repeated complaints” of discrimination by reuniting her with her alleged harasser, Tribble, and then refusing to reassign her away from him without cutting her salary. Id. at 382.

As to aider-abettor liability, Johnson's and Tribble's alleged harassment of plaintiff is the basis for the City's “primary” violation of the NYSHRL. In addition, plaintiff plausibly alleges Castelli rebuked her for complaining about Tribble's harassment and refused to transfer her to another squad without effectively demoting her. Finally, plaintiff plausibly alleges Bradley was aware Tribble had previously harassed her when he approved her assignment to Squad 8.

Thus, plaintiff has plausibly alleged Johnson, Tribble, Castelli, and Bradley aided and abetted the City's violations of the NYSHRL.

Defendants' motion to dismiss is GRANTED as to (i) plaintiff's race-based hostile work environment, retaliation, and disparate treatment claims, (ii) plaintiff's gender-based disparate treatment claim, and (iii) plaintiff's aider-abettor claims against individual defendants Seit, Chong, and Fitzsimmons.

Defendants' motion to dismiss is DENIED as to (i) plaintiff's gender-based hostile work environment and retaliation claims, (ii) plaintiff's NYSHRL claims against Castelli and Bradley, individually, and (iii) plaintiff's NYSHRL aider-abettor claims against individual defendants Johnson, Tribble, Castelli, and Bradley.

The Clerk is instructed to terminate the pending motion. (Doc. # 25).

SO ORDERED. -------- Notes: