WALKER v. TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY (2023)

Order, Supreme Court, New York County (Mary V. Rosado, J.), entered August 10, 2022, which denied defendants’ motion to dismiss plaintiff's causes of action for discrimination and retaliation under the New York City Human Rights Law (City HRL) and New York State Human Rights Law (State HRL), her aiding and abetting claims against defendant Sharon Gallo–Kotcher, and her claims under the Gender–Motivated Violence Act (GMVA), unanimously affirmed, without costs.

The federal court's decision granting dismissal of plaintiff's federal discrimination claims at the pleading stage does not preclude her City and State HRL claims based on principles of collateral estoppel (see e.g. Lively v. Wafra Inv. Advisory Group, Inc., 211 A.D.3d 432, 432, 180 N.Y.S.3d 92 [1st Dept. 2022];  see also Hudson v. Merrill Lynch & Co., Inc., 138 A.D.3d 511, 514, 31 N.Y.S.3d 3 [1st Dept. 2016]).  Unlike in federal discrimination claims, employment discrimination claims brought under the City and State HRLs are generally analyzed under a lenient notice pleading standard, whereby the plaintiff need not plead specific facts, but must only give the defendants “fair notice” of the nature and grounds of the claims (Petit v. Department of Educ. of City of N.Y., 177 A.D.3d 402, 403, 113 N.Y.S.3d 30 [1st Dep't 2019] [“Fair notice is all that is required to survive at the pleading stage”];  see also Vig v. New York Hairspray Co., L.P., 67 A.D.3d 140, 145, 885 N.Y.S.2d 74 [1st Dept. 2009] [same]).  Here, plaintiff has not had a full and fair opportunity to litigate her City and State HRL claims under the appropriate standards (see e.g. Lively, 211 A.D.3d 432, 180 N.Y.S.3d 92;  cf.  Wiltz v. City of New York, 191 A.D.3d 452, 141 N.Y.S.3d 49 [1st Dept. 2021]).

Plaintiff has sufficiently pleaded her claims of discrimination and hostile work environment under the State and City HRLs (see Campbell v. New York City Dept. of Educ., 200 A.D.3d 488, 489, 160 N.Y.S.3d 12 [1st Dept. 2021];  see also Brown v. City of New York, 188 A.D.3d 518, 135 N.Y.S.3d 103 [1st Dept. 2020]).  The complaint alleges that she received more intense scrutiny and was excluded from meetings that her male, non-Black peer was invited to join.  Defendant Victor Muallem allegedly subjected her to verbal abuse, in the presence of co-workers, clients, opposing counsel and arbitrators on several occasions, and even struck her during an arbitration hearing while she was cross-examining a witness.  Plaintiff alleges that this behavior stemmed from discriminatory animus, as Muallem directed it towards only plaintiff and other Black female employees (see Campbell, 200 A.D.3d at 489, 160 N.Y.S.3d 12).

Plaintiff has also sufficiently pleaded her retaliation claim, as the complaint alleges, and therefore provides defendants with fair notice of, defendants’ retaliatory conduct following plaintiff's protected actions of filing various complaints and retaining counsel in response to defendants’ allegedly discriminatory acts.  Such retaliatory conduct includes, but is not limited to, defendants’ forcing plaintiff to move to an office in extremely close proximity to her alleged abuser Muallem while ignoring plaintiff's reasonable plea not to do so.  (Petit v. Department of Educ. of City of N.Y., 177 A.D.3d at 403, 113 N.Y.S.3d 30.)

Plaintiff sufficiently pleaded the aiding and abetting claims against defendant Sharon Gallo–Kotcher (see Tirschwell v. TCW Group, Inc., 194 A.D.3d 665, 667, 150 N.Y.S.3d 38 [1st Dept. 2021]).  Though the complaint alleges that she too engaged in discriminatory and retaliatory conduct, it also alleges that she was aware of Muallem's discriminatory conduct and did nothing to stop it (see Ajoku v. New York State Off. of Temporary & Disability Assistance, 198 A.D.3d 437, 438, 152 N.Y.S.3d 566 [1st Dept. 2021]).

Finally, plaintiff sufficiently stated a claim under the GVMA (Administrative Code of City of N.Y. § 8–903), as she alleged that Muallem physically harmed her by striking her on February 3, 2020, and that Muallem had directed animus against another Black female employee in the past.  The Court must accept these allegations, which evidence at least some gender-based animus, as true on a motion to dismiss (Sassi v. Mobile Life Support Servs., Inc., 37 N.Y.3d 236, 241, 154 N.Y.S.3d 290, 175 N.E.3d 1246 [2021]).

We have considered the defendants’ remaining arguments and find them unavailing.