Gail Palmer, Plaintiff, v. Vivian Cook, individually and in her official capacity as New York State Assemblywoman, THE NEW YORK STATE ASSEMBLY, and REGINALD CHALMERS, individually and in his capacity as an employee of Assemblywoman Cook, Defendants.
The following e-filed papers numbered 17-20, 30-32 and 37 submitted and considered on this motion by defendant VIVIAN COOK, (hereinafter referred to as "Defendant") seeking an Order pursuant to Civil Practice Law & Rules (hereinafter referred to as "CPLR") 3211 (a)(5) and (a)(7) dismissing plaintiff GAIL PALMER's, (hereinafter referred to as "Plaintiff") Complaint in its entirety with prejudice or alternatively an Order pursuant to CPLR 3024 (b) striking certain scandalous and prejudicial material inserted in the Complaint and for such other and further relief as this Court deems just and proper.
Notice of Motion- Memo of Law- Affirmation-Exhibits EF 17-20
Memo of Law in Opposition-Affidavit-Exhibits EF 30-32
Reply Memorandum of Law EF 37
The facts are alleged as follows: this action arises out of an employment relationship between Plaintiff and Defendant. Plaintiff is an African American woman over the age of 40 years old. Defendant is an elected official to the New York State Assembly. Plaintiff was employed by Defendant from January 1, 2006 to May 19, 2006 (hereinafter referred to as the "2006 Employment") at which time her salary was $36,000 per annum, but resigned from her position in May of 2006 due to a hostile and intimidating work environment created by Defendant. Specifically, during that time, the Defendant cursed at, and excoriated her and her co-workers. Additionally, Defendant directed multiple derogatory racial epithets towards Plaintiff, despite Plaintiff's regular requests that Defendant refrain from doing so.
Subsequently, in 2010, Defendant solicited Plaintiff to return to work at her office. Plaintiff agreed to take the position, claiming that the comprehensive medical benefits were appealing to her and her family because her husband was chronically ill and totally disabled. Plaintiff worked for Defendant from April 30, 2010 until December 31, 2016 (hereinafter referred to as the "2010- 2016 Employment"); at that time Plaintiff's salary was $30,000. According to Plaintiff, the $6,000 difference in her pay was due to Plaintiff's need to leave work at 4 P.M. as opposed to 5 P.M.. However, Plaintiff still worked an eight (8) hour work day.
At this time, Plaintiff's job duties included: "interfacing with constituents, performing research, representing the Member, tracking legislation, maintaining responsibility for constituent services, maintaining files, performing routine office tasks, maintaining the Member's calendar and making appointments, media liaison and outreach, and other related duties."
Plaintiff claims during her 2010-2016 Employment, Defendant's actions remained unchanged. Plaintiff contends that Defendant directed racial slurs and epithets towards her. Furthermore, Defendant questioned whether Plaintiff's husband was actually sick. During her 2010-2016 Employment, the named defendant REGINALD CHALMERS (hereinafter referred to as "Chalmers") began working at the office. Chalmers is allegedly Defendant's grandson. Plaintiff claims Chalmers received full pay while working less than the forty (40) hours that his position required.
Plaintiff claims that Chalmers was volatile, and targeted her because of her gender and her sick husband. On one occasion, Chalmers became aggressive and agitated because Plaintiff did not bring him a McDonald's breakfast. According to Plaintiff, Chalmers began to yell obscenities and became loud and verbally abusive towards Plaintiff. In response, Plaintiff began to shake. Defendant witnessed the incident but took no action. As a result, Plaintiff left work and reported the incident to Kathleen Joyce ("Joyce"), the director of human resources for the named defendant The New York State Assembly (hereinafter referred to as "NYSA"). In or around August of 2015, Plaintiff filed an internal harassment and discrimination complaint against Chalmers. NYSA, through Joyce, informed Plaintiff that the incident would be investigated with the help of outside counsel.
During the investigation, Plaintiff was placed on administrative leave. Plaintiff could not return to work until it was deemed advisable by the mutual agreement of Defendant, NYSA and the aforementioned outside counsel.
Plaintiff received a letter from NYSA on August 27, 2015 (hereinafter referred to as the "August Letter"). The August Letter set forth a plan to prevent retaliation. In sum, the letter directed that all members of the office were to interact with each other professionally, that any complaints resulting from divergence from the plan were to be sent to either Defendant or NYSA. In part, the August Letter stated "[i]n its efforts to create a workplace free from unlawful discrimination and harassment, the Assembly is committed to maintaining the highest standards of ethical conduct from its employees...".
Plaintiff received another letter from NYSA on September 8, 2015 (hereinafter referred to as the "September Letter"). The September Letter indicated that Chalmers' actions were deemed not in violation of NYSA's policy. However, the letter also indicated that the investigation did conclude a "heated exchange" occurred and "... any attempt at retaliation against any party is expressly forbidden by the Assembly's policy, and subject to censure."
Plaintiff returned to work at the conclusion of the investigation, and alleges the work environment remained hostile, and that she experienced retaliatory behavior. Prior to Plaintiff's return, Defendant had the locks to the office changed and refused to give Plaintiff a key, thereby requiring Plaintiff to wait for another co-worker to arrive in the morning in order to gain access to the office. Plaintiff claims Defendant directed racially profane statements towards her. On one occasion, Plaintiff's decision to wear, what she describes as a "sleeveless but professional tailored dress," sparked multiple derogatory insults from Defendant. (Specifically, Plaintiff alleges that Defendant repeatedly called her a "whore.")
At this time, Plaintiff's husband needed to begin chemotherapy. Plaintiff requested to use her vacation time on eight (8) consecutive Fridays to bring him to chemotherapy. Initially, Defendant agreed that Plaintiff could leave the office between 10 a.m. and 2 p.m. on those days. However, Plaintiff claims after taking her husband to his second Friday chemotherapy appointment, Defendant refused to allow her to take him to the remaining six (6). As a result, Plaintiff claims she had to "scramble" to have family members accompany her husband to those visits.
Subsequently, Plaintiff's husband was placed on hospice care. Plaintiff claims Defendant made negative comments about Plaintiff's husband's health--comments that induced fear, anxiety and pain in Plaintiff. On September 4, 2016, Plaintiff's husband passed away. Plaintiff requested that Defendant not attend the memorial service at Plaintiff's home, to which Defendant complied. Plaintiff requested five (5) extra days for bereavement, which was denied. Plaintiff called NYSA seeking to learn of a way to overturn Defendant's denial but was told that the decision was solely within Defendant's discretion.
Ultimately, Defendant declined to renew Plaintiff's appointment for 2017.
On December 7, 2018, Plaintiff instituted this action by filing a Summons and Complaint. Plaintiff's causes of action are as follows: discrimination, retaliation and hostile work environment pursuant to New York City Administrative Code § 8-107 (hereinafter referred to as "NYCHRL"), discrimination, retaliation and hostile work environment pursuant to New York State Executive Law § 296 (hereinafter referred to as "NYSHRL"), violation of New York State Public Officers Law § 73, and intentional infliction of emotional distress.
CPLR 3211 (a)(5)
CPLR 3211 (a)(5) reads as follows:
(a) Motion to dismiss cause of action. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that:
(5) the cause of action may not be maintained because of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment, release, res judicata, statute of limitations, or statute of frauds... (emphasis added).
Defendant seeks to dismiss the portion of Plaintiff's claims sounding in retaliation pursuant to CPLR 3211 (a)(5), on grounds that such claims are barred by the statute of limitations.
Retaliation on the basis of age, gender and/or race
Defendant cites Alimo v Off -Track Betting Corp. (258 AD2d 306 [1st Dept 1999]) where plaintiff alleged, amongst other things, discrimination pursuant to Executive Law § 296. Defendant moved to dismiss on the ground that plaintiff's claims were time barred. Plaintiff alleged that an assault by one co-worker and an offensive song, sung by another (both in 1996) amounted to a "continuing violation" linked to plaintiff's Civil Rights Act of 1964 Title 7 claim arising from treatment that occurred in 1994 (id). The court rejected the plaintiff's argument (id). Discrimination claims asserted under State and local statutes including Executive Law § 296 and Administrative Code of City of NY Title 8 are subject to a three year statute of limitations (id at 307). Therefore, the court found all of plaintiff's claims of conduct that took place outside that time period were barred.
Plaintiff cites Bermudez v City of New York (783 F Supp 2d 560, 572 [SD NY 2011]) where plaintiff, an employee of the New York City Police Department, instituted the action sounding in, amongst other claims, violation of New York Administrative Code §§ 8-107 et seq. alleging retaliation and race, gender and religious discrimination. Plaintiff instituted the action on February 16, 2010 (id at 574). The court instructed that in order for the court to consider claims based upon conduct that occurred prior to February 16, 2007 plaintiff would have to invoke an applicable exception to the three year limitation (id). Plaintiff asserted the continuing violations exception was applicable. The continuing violation exception tolls the commencement of the statute of limitations until the completion of the last discriminatory act in furtherance of the policy of discrimination (id). "To bring a claim within the continuing violation exception, a plaintiff must at the very least allege that one act of discrimination in furtherance of the ongoing policy occurred within the limitation period". (Id quoting Patterson v County of Oneida, 375 F.3d 206, 220 (2d Cir 2004)].)"Each discrete discriminatory act starts a new clock for filing charges alleging that act, and even serial violations-- a series of discrete but related acts of discrimination--do not warrant application of the continuing violations doctrine." (see Milani v Intl. Bus. Mach. Corp., Inc., 322 F Supp 2d 434, 452 [SD NY 2004] quoting Nat'l. R.R. Passenger Corp. v. Morgan, 536 US 101, 113-115 .) Plaintiff argued her hostile work environment claim was grounded in a series of continuing violations stemming from 2004 to October 7, 2007. (Bermudez at 582.) Beginning in 2004, plaintiff's supervisor made inappropriate sexual comments, gestures and acts which lasted at least until late 2006. That between 2005 and 2006 plaintiff's supervisor and co-worker made discriminatory comments on plaintiff's religion. Therefore, plaintiff asserts when taken as a whole, her allegations are sufficient to plead the existence of a hostile work environment. The Court held the claims were timely due to the continuing violation exception (id).
Plaintiff claims that the following incidents are not time barred or subject to the continuing violations exception:
• Plaintiff's allegations that she was subjected to racial discrimination due to Defendant's violent behavior and racially charged language while employed by Defendant between January and May of 2006.
• Plaintiff's allegations that she was subjected to additional instances of racial discrimination and a hostile work environment due to Defendant's violent behavior and racially charged language while employed by Defendant between April 2010 to December 31, 2016.
• Plaintiff's allegations that she was subjected to gender discrimination and/or a hostile work environment due to Chalmers watching pornography at work. No dates given.
• Plaintiff's allegations related to the incident in 2015 when Chalmers allegedly became verbally aggressive, harassing, intimidating, threatening and acting abusively towards Plaintiff.
• Plaintiff's allegations that Defendant retaliated against her for the August 2015 internal complaint that Plaintiff filed against Chalmers by changing the locks by reducing her work responsibilities, making offensive and profane statements to her based on race, gender and/or age and refusing her request for additional time off to take care of her husband.
• Plaintiff's allegations that Defendant wrongfully denied Plaintiff's request to extend her bereavement leave and engaging in harassing behavior upon Plaintiff's return from bereavement leave.
According to Defendant, since Plaintiff commenced this action on December 7, 2018, any alleged retaliatory acts that occurred prior to December 7, 2015 are time barred. Defendant asserts because Plaintiff's incident with Chalmers and the underlying investigation occurred in August 2015, the retaliation claims are time barred. Defendant cites Innocenzo Catanzaro v City of New York (2012 WL 1642726 *5 [Sup. Ct. NY County, April 3, 2012, No. 25554/2011]) in which plaintiff instituted the action claiming retaliation under § 75-b of the Civil Service Law. Plaintiff, who was employed by defendant, made a complaint that beginning in 2006, defendant improperly volunteered its staff members to enter the "hot zone" in violation of OSHA requirements. (2012 WL 1642726, *2.) Subsequently, plaintiff alleged he experienced a series of retaliatory actions. Defendant moved pursuant to CPLR 3211(a)(5) alleging the statute of limitations period had run. The defendant contended any retaliatory claims that accrued prior to the one year limitations period were time barred (2012 WL 1642726 *6). Plaintiff asserted the continuing violation exception. The court sided with the defendant and stated "[t]he United States Supreme Court contrasted retaliation claims to which the continuing violation doctrine is inapplicable, with hostile work environment claims, to which the continuing violation doctrine may be applicable, reasoning, '[h]ostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct' " (citation omitted) (2012 WL 1642726, *7).
To the extent that the acts Plaintiff contends amounted to retaliation pursuant to NYCHRL and NYSHRL took place prior to December 7, 2015 they are time barred.
Application of Continuing Violations Exception to Claims Arising from 2006 Employment
Defendant alleges that Plaintiff's allegations related to her 2006 Employment are time barred and not subject to the continuing violations exception, because they were interrupted by four years of unemployment, a gap longer than the three year statute of limitations. Defendant points to Green v Continuum Health Partners, Inc. et al. (88 AD3d 487 [1st Dept 2011]) where plaintiff alleged the continuing violation exception was applicable to sexual harassment he allegedly experienced in 2005, three years prior to the initiation of the action and sexual harassment alleged to have occurred in 2008 (id). The court considered the gap in time coupled with the assertion that the alleged harasser refrained from inappropriate conduct during that time. Ultimately, the court held that the continuing violations exception was inapplicable (id).
This court finds that Plaintiff's allegations grounded solely in conduct that occurred during her 2006 Employment are time barred. The conduct is too attenuated from that which occurred during her 2010-2016 Employment to be deemed in furtherance of a policy of discrimination (Bermudez at 574); therefore, the continuing violations exception is inapplicable.
CPLR 3211 (a)(7)
CPLR 3211 (a)(7) states:
(a) Motion to dismiss cause of action. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that:
7. the pleading fails to state a cause of action...
"On a motion to dismiss pursuant to CPLR 3211 (a) (7), the claim must be afforded a liberal construction, the facts therein must be accepted as true, and the plaintiff must be accorded the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory " (Leon v Martinez, 84 NY2d 83, 87-88 ; see also Sawitsky v State, 146 AD3d 914 [2d Dept 2017]),
Defendant's Claims of Immunity from Liability Under NYCHRL (City Law) and NYSHRL (State Law)
Defendant asserts she is immune from liability under NYCHRL. Furthermore, even if she is not immune, Defendant asserts Plaintiff's claims against Defendant under NYCHRL and NYSHRL including caregiver, gender, age and race discrimination fail pursuant to CPLR 3211 (a)(7).
In Emengo v State of New York (2015 WL 5915286 *3 [Sup. Ct. NY County October 9, 2015 No. 150733/2013] ) the court states that the State legislature waived sovereign immunity when it passed the NYSHRL and made its provisions applicable to the State. Therefore, the State, its agencies and employees are subject to the NYSHRL for actions that envision direct adherence to a governing rule or standard with a compulsory result.
However, the court notes absolute immunity still exists for public employees "performing discretionary functions, involving the exercise of reasoned judgment which could typically produce different acceptable results even where the State has generally waived its sovereign immunity". (2015 WL 5915286, *3.) Additionally, individuals may not be held liable when they are acting within the scope of their duties.
Regarding NYCHRL, New York City lacks the power to waive the State's sovereign immunity. (2015 WL 5915286, *3.) Therefore, the State, its agencies and employees engaged in carrying on the State's governmental functions are not subject to the NYCHRL. In Emengo, plaintiff alleged discrimination on the basis of race, national origin and color (2015 WL 5915286, *1). The plaintiff sued the State of New York, the State agency he worked for and prior supervisors at the state agency individually and within their capacity as employees of the State (2015 WL 5915286, *1). The court determined it had subject matter jurisdiction over plaintiff's NYSHRL claims and plaintiff's NYCHRL claims only to the extent the claims are against "the individual defendants, in their individual capacities, for ministerial acts of discrimination, aiding and abetting discrimination and retaliation against plaintiff"(2015 WL 5915286, *3).
Under both NYSHRL and NYCHRL, the plaintiff must allege: 1) membership in a protected class; 2) qualification for the position and satisfactory performance; 3) adverse employment actions and 4) such adverse actions occurred under circumstances that give rise to an inference of discrimination (2015 WL 5915286, *4).
According to Emengo, an adverse employment action must be material examples include: termination, demotion evidenced by a decrease in salary, less distinguished title, material loss of benefits, diminished material responsibility "or other indices...unique to a particular situation" (2015 WL 5915286, *3).
Although Defendant claims that as an instrumentality of the State of New York, she is immune from liability under the NYCHRL, Emengo refers to an exception to the general rule of sovereign immunity. Pursuant to that exception, this court holds subject matter jurisdiction over NYCHRL claims asserted against "the individual defendants, in their individual capacities, for ministerial acts of discrimination, aiding and abetting discrimination and retaliation against plaintiff" (2015 WL 5915286, *3). To the extent that Plaintiff within its Verified Complaint has pleaded facts sufficient to satisfy entitlement to the aforementioned exception, Plaintiff's NYCHRL claims asserted against Defendant shall survive.
Plaintiff argues Defendant was named in the Verified Complaint both individually and within her capacity as Assemblywoman. Further, Plaintiff argues that the causes of action contained within the Verified Complaint may impute liability upon Defendant within her capacity as an individual.
Defendant attempts to rebut Plaintiff's argument by asserting that Plaintiff was required to demonstrate a prima facie case, and that Plaintiff failed to do so by not specifically pointing out which causes of action apply to Defendant as an individual within the Verified Complaint. In support of this argument Defendant cites: Forrest v Jewish Guild for the Blind (3 NY3d 295, 305 ); Lambert v Macy's E., Inc. (84 AD3d 744, 745 [2d Dept 2011]) and Cotterell v State of New York (129 AD3d 653, 654 [2d Dept 2015]). Notably all three cases revolve around a motion for summary judgment; the matter herein is a motion to dismiss. "On a motion to dismiss pursuant to CPLR 3211 (a) (7), the claim must be afforded a liberal construction, the facts therein must be accepted as true, and the plaintiff must be accorded the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory " (Leon v Martinez, 84 NY2d 83 ; see also Sawitsky v State, 146 AD3d 914 [2d Dept 2017]). "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Ayotte v Gervasio, 81 NY2d 1062, 1063 , citing Alvarez v Prospect Hospital, 68 NY2d 320 ; see Schmitt v Medford Kidney Ctr., 121 AD3d 1088 [2d Dept 2014]; Zapata v Buitriago, 107 AD3d 977 [2d Dept 2013]). As exhibited by the above cited cases, the requirements of a motion for summary judgment are grossly different than that which is required under a motion to dismiss. Defendant's attempt to apply a summary judgment standard on this motion to dismiss is improper here, where sufficient notice has not been given to the other side (see CPLR 3211[c]). Therefore, this Court will continue to hear this motion as one to dismiss pursuant to CPLR 3211 (a)(7).
Discrimination Based on Race, Gender, Age and/or Caregiver Status
The Court will now turn its attention to whether Plaintiff has pleaded a cause of action for discrimination on the basis of race, gender, age and/or caregiver status pursuant to NYSHRL and NYCHRL.
Plaintiff cites Arnold Melman, MD v Montefiore Med. Ctr. ( 98 AD3d 107, 112 (1st Dept, 2012) in which the plaintiff alleged age discrimination pursuant to NYCHRL. The court noted NYCHRL was amended by the Local Civil Rights Restoration Act of 2005 (LCRRA) (Local Law No. 85  of City of NY) to clarify, among other things, that it should be construed, regardless of the construction given to comparable federal and state statutes, 'broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible' " (Melman at 112 citing Lori Albunio v City of New York, 16 NY3d 472, 477-478 ).
The Melman court goes on to state that since the motive of the LCRRA was to construe the NYCHRL as liberally as reasonably possible in favor of plaintiffs to the end that "discrimination should not play a role in [employment] decisions"(Melman at 126), the plaintiff should prevail in an action under the NYCHRL if he or she proves that unlawful discrimination was one of the motivating factors, even if it was not the sole motivating factor, for an adverse employment decision (id).
This Court acknowledges that in Melman, the court was deciding a motion for summary judgment. Melman's relevance to this motion to dismiss lies with its insight into how the NYCHRL prongs for discrimination may be construed.
The New York City Code § 8-102 defines caregiver and related terms as follows:
Caregiver. The term "caregiver" means a person who provides direct and ongoing care for a minor child or a care recipient. As used in this definition:
1. Care recipient. The term "care recipient" means a person with a disability who: (i) is a covered relative, or a person who resides in the caregiver's household and (ii) relies on the caregiver for medical care or to meet the needs of daily living.
2. Covered relative. The term "covered relative" means a caregiver's child, spouse, domestic partner, parent, sibling, grandchild or grandparent, or the child or parent of the caregiver's spouse or domestic partner, or any other individual in a familial relationship with the caregiver as designated by the rules of the commission.
Defendant alleges that Plaintiff's caregiver status became effective as of May 4, 2016, when caregiver status became a protected class. Therefore, Defendant alleges all Plaintiff's claims preceding May 4, 2016, should be denied as neither the statute nor the legislature indicated that the amendment was retroactive.
This Court agrees with Defendant's contention that Plaintiff's caregiver status only became effective as of May 4, 2016, and terminated upon the passing of her husband. However, Plaintiff's Verified Complaint contains facts that state a cause of action for caregiver status discrimination. Pursuant to the four required elements to establish discrimination under NYCHRL, as enumerated above, at issue here is whether Plaintiff has alleged facts sufficient to satisfy the third and fourth prongs.
Within the Verified Complaint, Plaintiff states that her husband needed to begin chemotherapy. Plaintiff claims she requested four (4) hours off on eight (8) consecutive Fridays to take him to his chemotherapy sessions. Plaintiff affirms that this would have been a combination of vacation and other time that she accrued. Plaintiff alleges Defendant initially approved the request but recanted after Plaintiff attended two sessions. Plaintiff further alleges that throughout her 2010-2015 Employment Defendant made "grossly inappropriate and objectively hurtful statements" related to Plaintiff's husband's health. Finally, the $6,000 decrease in salary that Plaintiff received as a result of her need to leave work earlier to care for her husband, notwithstanding that Plaintiff still worked a full eight (8) hour day give rise to a claim for discrimination based on caregiver status pursuant to NYCHRL. It is not clear whether these incidents arose during the period in which Plaintiff acquired caregiver status. By affording the claim a "liberal construction" and affording the Plaintiff the "benefit of every favorable inference," this Court denies Defendant's motion to dismiss Plaintiff's discrimination claim pursuant to her caregiver status as against Defendant. (Leon at 83.)
Plaintiff is over the age of 40. Plaintiff alleges in the Verified Complaint, "Palmer believed Cook repeatedly made statements regarding her appearance on the basis of gender and age, because Palmer always appeared younger, professional and well dressed when compared with Cook. These types of comments were ongoing ." Despite a liberal view of the facts, taken as true, Plaintiff has not alleged facts sufficient to satisfy the third and fourth prongs. Plaintiff alleges these "comments were ongoing," however, Plaintiff has failed to provide even one statement indicative of age discrimination. Therefore, Plaintiff's attempt to correlate age discrimination and her termination are not supported by the facts as alleged. Defendant's motion to dismiss Plaintiff's claims related to age discrimination pursuant to NYCHRL is granted as against Defendant.
Plaintiff's alleges Defendant called her a " 'whore' or 'prostitute' for wearing a sleeveless but professional tailored dress to work in the summertime".
Defendant argues similar to Plaintiff's claim based on age discrimination that Plaintiff has failed to prove a nexus between the "stray comments" and an adverse employment action. Given that the aforementioned comments were "stray," Plaintiff has not alleged that gender discrimination was one of the motivating factors for her ultimate termination. (Melman at 126.) Therefore, as abhorrent as Defendant's alleged comments were, this Court is constrained to agree with Defendant's argument. Defendant's motion to dismiss Plaintiff's claims related to gender discrimination pursuant to both NYCHRL and NYSHRL is granted as against Defendant.
Plaintiff alleges that throughout her 2010-2016 Employment the Defendant continuously referred to her as " 'GeeChee'1 which Palmer understood to be pejorative slang for her mixed-race heritage." Furthermore, Defendant used racially derogatory epithets (including a term to which the Court herein will refer as "the n word"), "on a regular basis" when referencing Palmer. Unlike Plaintiff's allegations regarding age and gender discrimination, Plaintiff's allegations related to racial discrimination appear to have been continuous throughout her 2010-2016 Employment.
Defendant appears to assert that the fact that both parties are African American provides merit to the argument that there is no basis to assume that race played any part in the adverse action. To the extent that Defendant is attempting to ground a finding of law on the basis of the complicated chasms associated with intra-race relations, this Court finds it both unfounded and inappropriate for our purposes."...[I]n the related context of racial discrimination in the workplace we have rejected any conclusive presumption that an employer will not discriminate against members of his own race. 'Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group.' " (internal citation omitted) (Oncale v Sundower Offshore Serv., Inc., 523 US 75, 78 .)
Plaintiff has not provided facts specific enough to suggest that race was the sole motivating factor in her termination or other adverse employment actions. However, the Plaintiff has alleged facts that suggest that her race may have been one of the motivating factors in her termination and other adverse employment actions. (Melman at 126.) Therefore, Defendant's motion is granted in part, as to Plaintiff's claim of racial discrimination pursuant to the State law, NYSHRL. However, Defendant's motion is denied in part as to Plaintiff's claim of racial discrimination pursuant to the City law, NYCHRL. As previously stated, any potential liability under NYCHRL is against Defendant in her individual capacity.
Aiding and Abetting Under the NYSHRL [Executive Law § 296(6)]
Plaintiff alleges an incident with the named defendant Chalmers in which he allegedly became aggressive and agitated with Plaintiff for failing to bring him a McDonald's breakfast one morning. Plaintiff alleges Chalmers targeted her because she was " a woman with a sick husband." Defendant allegedly witnessed the incident and "did not say or do anything to intercede, otherwise make any effort to protect Palmer, or to tell Chalmers to cease his inappropriate conduct."
In Matter of the State Division of Human Rights v St. Elizabeth's Hospital (66 NY2d 684, 685 ) where plaintiff alleged racial discrimination under NYSHRL due to her treatment at defendant's hospital, the court found that the defendant doctor discriminated against the defendant. At issue was whether the defendant doctor's conduct could be imputed upon the defendant hospital as an employer. Generally, "[a]n 'employer cannot be held liable for an employee's discriminatory act unless the employer became a party to it by encouraging, condoning, or approving it" (id at 687 quoting Matter of Totem Taxi v State Human Rights Appeal Bd., 65 NY2d 300, 305 ). The court found condonation contemplates knowledge, after the fact forgiveness or acceptance of an offense (id) "[A]n employer's calculated inaction in response to discriminatory conduct, indicate condonation." (id.) In Emengo, plaintiff also alleged violation of NYCHRL and NYSHRL on the basis that the state agency defendant aided and abetted in its employee's discriminatory acts (2015 WL 5915286, *4). The court stated such a claim requires the existence of a discriminatory violation by a primary party, knowledge on the part of the aider and abetter, and substantial assistance by the aider and abetter in the achievement of the primary violation. (2015 WL 5915286, *5.) Ultimately, since the court neglected to find discrimination in violation of NYCHRL and NYSHRL the state agency defendant could not be found liable of aiding and abetting. (2015 WL 5915286, *5.)
The Verified Complaint fails to allege facts to suggest that Chalmers discriminated against Plaintiff either on the basis of gender or on the basis of caregiver status. Plaintiff's allegations that Chalmers viewed pornography during work hours, while inappropriate, does not rise to the level of discriminatory conduct. A pre-condition to proving aiding and abetting pursuant to NYSHRL and NYCHRL is a finding of discrimination. Therefore, Defendant's motion to dismiss Plaintiff's claims of aiding and abetting as against Defendant is granted to the extent that the alleged discriminatory conduct was perpetrated by Chalmers.
Hostile Work Environment Under NYSHRL
In Jones v Mayflower Intl. Hotel Group, Inc., 2018 WL 3999586 *1 (ED NY, June 29, 2018, No. 15-CVJ4435) plaintiff was employed by defendant to work as a housekeeper for defendant's hotel. Plaintiff was one of only two African American employees, the majority of the staff was Chinese. During his employ plaintiff alleges other housekeeping employees called him "baboon", "King Kong" and "gorilla". Plaintiff alleges he notified the named defendant Chang, whose position is disputed to be either an interpreter on behalf of the other employees or an assistant manager, that he was experiencing discrimination. (2018 WL 3999586, *1.)
Thereafter, plaintiff's supervisor called a meeting to explain that discrimination would not be tolerated. Five (5) days later plaintiff was called into a meeting with his supervisor where he was fired. (2018 WL 3999586, *2.) Plaintiff claims he was a model employee, was commended by management and even received a $200 bonus. Defendant alleged plaintiff was insubordinate, and broke many rules. Plaintiff had causes of action sounding in hostile work environment and retaliation. Defendant moved for summary judgment.
To state a claim under NYSHRL for hostile work environment, plaintiff must prove "a workplace permeated with 'discriminatory intimidation, ridicule, and insult...that is sufficiently severe or pervasive to alter the conditions of the victims employment and create an abusive working environment' ". (2018 WL 3999586, *6.) Under NYSHRL, "[P]laintiff may demonstrate the creation of a 'sufficiently severe or pervasive' work environment either through a single event that is 'extraordinarily severe' or through 'a series of incidents...sufficiently continuous and concerted to have altered the conditions of [his]' working environment". (2018 WL 3999586, *6.)
The NYCHRL sets a lower standard for maintaining a cause of action for hostile work environment. Plaintiff must show "he was 'treated less well than other employees because of his membership in a protected class' ". (2018 WL 3999586, *6.) According to the court, the name calling plaintiff experienced was sufficient enough for a reasonable jury to find a hostile work environment.
Next, because the alleged name calling were the actions of co-workers, plaintiff was required to demonstrate a specific basis to impute the conduct that gave rise to the creation of the hostile work environment upon the employer. (2018 WL 3999586, *7.) Specifically, plaintiff must demonstrate that "the employer failed to provide a reasonable avenue for complaint or if it knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action."(2018 WL 3999586, *7.) Defendant argues it exercised reasonable care because its employment materials included a quiz that evaluated its employees knowledge of the companies policies and procedures related to discrimination. Furthermore, defendant's argue they had an employee manual that contained language prohibiting discrimination in all forms. The court stated disputes surrounding material issues of fact prevented summary judgment in defendant's favor. (2018 WL 3999586, *7.)
Defendant cites several cases where, in its view, the court has dismissed more "severe" cases alleging hostile work environment.
Plaintiff alleges both "a series of incidents...sufficiently continuous and concerted to have altered the conditions of"her "work environment" and that she was "treated less well than other employees because of her membership in a protected class". (2018 WL 3999586, *6.)
In addition to the aforementioned caregiver, age, race and gender based comments, the following are facts alleged by Plaintiff in support of her hostile work environment claim:
• Defendant allegedly threw or destroyed small objects in fits of anger. When displeased with her staff Defendant would use profane epithets.
• Upon returning to work from administrative leave, Defendant had the locks on the office door changed, but refused to provide Plaintiff with the key. As mentioned earlier, Plaintiff started her workday at 8 a.m., one hour earlier than what was customary. Plaintiff alleges she had to wait outside each morning for another employee to arrive and let her in. Around this time, Plaintiff alleges Defendant removed her "from all of her work responsibilities", meaning she was no longer a liaison between constituents and Defendant, nor was she allowed to handle any of her other customary office duties.
Based on the alleged facts in this matter and relevant case law, the Court denies Defendant's motion to dismiss Plaintiff's hostile work environment claim in its entirety as against Defendant Vivian Cook.
New York State Public Officers Law § 73
Defendant contends Plaintiff's Sixth Cause of Action should be dismissed because Chalmers does not fall under the definition of a "Relative"
The relevant portion of the New York State Public Officers Law § 73 states:
(m) The "relative" of any individual shall mean any person living in the same household as the individual and any person who is a direct descendant of that individual's grandparents or the spouse of such descendant.
Nowhere in Plaintiff's Verified Complaint does she allege that Chalmers lives with the Defendant. Despite affording the claim a "liberal construction" and affording the Plaintiff the "benefit of every favorable inference," this Court grants Defendant's motion to dismiss Plaintiff's claim pursuant New York State Public Officers Law § 73. (Leon at 83.)
Plaintiff's Claim for Intentional Infliction of Emotional Distress
Defendant argues "[t]he causes of action sounding in... intentional infliction of emotional distress are governed by a one-year statute of limitation...A cause of action alleging intentional infliction of emotional distress accrues on the date of injury". (Abdullah Wilson v Roger Erra, 94 AD.3d 756 [2d Dept 2012] see CPLR 215.)
Therefore, Plaintiff's claim for intentional infliction of emotional distress is denied as time barred, as against the Defendant.
Branch of Defendant's Motion to Strike Matter in Pleadings Pursuant to CPLR 3024 (b)
CPLR 3024 (b) states:
(b) Scandalous or prejudicial matter. A party may move to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading.
Defendant alleges that the portion of the Verified Complaint that relates to Plaintiff's 2006 Employment is irrelevant, in that all claims arising out of that time period are time barred. Defendant moves the Court to strike paragraphs 9-18, which pertain to Plaintiff's 2006 employment, of the Verified Complaint as scandalous and prejudicial pursuant to CPLR 3024.
In Patrice Irving v Four Seasons Nursing and Rehabilitation Ctr. et al. (121 AD3d 1046 [2d Dept 2014]) plaintiff initiated an action to recover damages for personal injuries sustained. In December of 2012, during a preliminary conference the defendant made an application pursuant to CPLR 3024 to strike language contained in plaintiff's Bill of Particulars, which stated "recklessness/reckless, intentional and malicious conduct , gross negligence, blatantly illegal conduct/ illegal conduct"(id at 1047). According to the court, "[m]atters that are unnecessary to the viability of the cause of action and would cause undue prejudice to the defendants should be stricken from the pleading or bill of particulars" (id at 1048).
This Court has found that Plaintiff's allegations grounded solely in conduct that occurred during her 2006 Employment are time barred. However, this does not deem the facts inapplicable to the analysis. Furthermore, Defendant has not established that it would suffer "undue prejudice" if the aforementioned paragraphs are not stricken. The allegations related to the 2006 Employment have not been proven any more "scandalous" than that which is alleged to have occurred during the 2010-2016 Employment.
Based on the foregoing, the Court makes the following findings, and orders as follows on the matter herein. It is hereby:
ORDERED, that the branch of Defendant's motion pursuant to CPLR 3211 (a)(5) to dismiss the portion of Plaintiff's complaint sounding in retaliation on grounds that such claims are time barred is granted to the extent that any and all Plaintiff's allegations grounded solely in conduct that occurred during her 2006 Employment are dismissed as time barred; and it is further
ORDERED, that the branch of Defendant's motion seeking to dismiss Plaintiff's retaliation claims pursuant to CPLR 3211 (a)(5) is granted to the extent that the acts Plaintiff contends amounted to retaliation pursuant to NYCHRL and NYSHRL took place prior to December 7, 2015; and it is further
ORDERED, that the branch of Defendant's motion to dismiss Plaintiff's discrimination claim on the basis of her caregiver status as against Defendant is denied; and it is further
ORDERED, that the branch of Defendant's motion to dismiss Plaintiff's race discrimination claim pursuant to NYSHRL is granted; and it is further
ORDERED, that the branch of Defendant's motion to dismiss Plaintiff's race discrimination claim pursuant to NYCHRL is denied; and it is further
ORDERED, that the branch of Defendant's motion to dismiss Plaintiff's discrimination claim on the basis of her gender and age as against defendant is granted; and it is further
ORDERED, that the branch of Defendant's motion to dismiss Plaintiff's hostile work environment claim is denied; and it is further
ORDERED, that the branch of Defendant's motion to dismiss Plaintiff's intentional infliction of emotional distress, aiding and abetting pursuant to Executive Law § 296 and New York State Public Officers Law § 73 claims is granted; and it is further
ORDERED, that Defendant's motion to strike paragraphs 9-18 of the Verified Complaint pursuant to CPLR 3024 (b) is denied.
The foregoing constitutes the decision and Order of this Court.
Dated: August 5, 2019
/s/ Chereé A. Buggs_______
Hon. Chereé A. Buggs, JSC
1. According to www.thefreedictionary.com, the term "Geechee" means: 1. a. The Gullah creole; b. A speaker or Gullah; and 2. Offensive Used as a disparaging term for a person who speaks a nonstandard local dialect, as in Savannah, Georgia or Charleston, South Carolina.
Chereé A. Buggs, J.