GARY L. SHARPE, District Judge.
Plaintiff Candy Pellegrini commenced this action against defendants Sovereign Hotels, Inc., Mary Koroso, John Laurin, and Matthew Hamzaoui under Title VII of the Civil Rights Act of 1964
On March 26, 2007, plaintiff Candy Pellegrini began her employment as a front desk clerk for defendant Sovereign Hotels, Inc., then doing business as the Best Western Hotel in Albany, New York. (See Defs. SMF ¶¶ 2, 10, Dkt. No. 26:20.) Upon her own request, Pellegrini generally worked the "A" shift on weekdays between 7:00 a.m. and 3:00 p.m. (See id. at ¶¶ 8, 10.) Her duties included checking hotel guests in and out, taking reservations, and answering phones. (See id. at ¶ 9.) Due to her mother's illness, Pellegrini regularly took time off and frequently could not work her schedule, leaving Sovereign to find someone to work in her place. (See id. at ¶¶ 11, 13-15.) While her mother passed away on June 25, 2007, Pellegrini's scheduling irregularity continued. (See id. at ¶ 19.)
According to Pellegrini, within days of Parkhurst's start as a front desk clerk, he began a campaign of aggressive sexual harassment and threatening behavior against her. Specifically, during his first week, Parkhurst told Pellegrini she had a "nice ass," groped her rear end, called her a "bitch" when she rebuked him, stated that he wanted to "fuck" her, grabbed her by the arm and forcibly kissed her on the lips, and subjected her to other inappropriate comments. (See id. at ¶¶ 31-33, 36, 113.) In addition, over the same period of time, Parkhurst repeatedly telephoned Pellegrini outside of work, saying similar things. (See id. at ¶¶ 31-33, 114.) In response, Pellegrini complained about Parkhurst's conduct to her managers, including defendants Mary Koroso, Matthew Hamzaoui, and John Laurin. (See id. at ¶¶ 32-33, 113-15; but see Defs. SMF ¶ 36, Dkt. No. 26:20 (stating that Pellegrini did not complain that the conduct was sexual in nature).) While the parties dispute whether Pellegrini was made aware of Sovereign's harassment reporting policy, it seems that Pellegrini acted in compliance with Sovereign's policy. (Compare Defs. SMF ¶¶ 34-37, Dkt. No. 26:20, with Pl. Resp. SMF ¶¶ 34-35, Dkt. No. 30.) According to defendants, Koroso subsequently met with Parkhurst and told him to cease calling Pellegrini, which Parkhurst denied doing. (See Defs. SMF ¶ Dkt. No. 38.) And after Pellegrini complained to Koroso a second time, the calls stopped. (See id. at ¶ 40.)
During a subsequent encounter between Pellegrini and Parkhurst, Parkhurst approached Pellegrini, grabbed her by the arm, and kissed her. (See id. at ¶ 46.) Again, after Pellegrini's rebuke, Parkhurst said "how do you like that bitch." (See id.) While defendants point out that Pellegrini did not report this incident immediately after it occurred, (see id. at ¶ 48), Pellegrini asserts that she spoke to both Koroso and Laurin within days of its occurrence, (see Pl. Resp. SMF ¶¶ 47-48, Dkt. No. 30).
On July 28, 2007, while Pellegrini and Parkhurst were working a banquet as servers, Parkhurst allegedly groped Pellegrini's breasts and said "nice tits." (See id. at ¶ 116.) The same night, after seeing Pellegrini talking with another male employee, Parkhurst grabbed Pellegrini by the arm, forcibly kissed her on the lips, and said "how do you like that?" (See id.) When Pellegrini demanded to be let go, Parkhurst told her to "watch [her] step" or someone will "get hurt." (Id.) Pellegrini reported this incident to Koroso on her next shift. (See id.) On August 12, after Pellegrini received flowers from a guest at a wedding banquet the previous night, Parkhurst allegedly punched a wall and a chair, grabbed Pellegrini by the back of the neck, kissed her, and told her that she "belongs" to him. (See id. at ¶¶ 108, 117.)
On August 22, 2007, upon Koroso's request, Pellegrini worked the "B" shift with Parkhurst. (See Defs. SMF ¶ 51, Dkt. No. 26:20.) During that shift, Pellegrini's boyfriend called the hotel phone twice, but Parkhurst answered the phone both times. After the two calls, Parkhurst told Pellegrini that he did not want her receiving personal phone calls from men, that she was not supposed to receive personal
The next day, August 23, Pellegrini informed Koroso about the prior day's events, and asked Koroso if she could end her shifts before Parkhurst arrived to work. (See id. at ¶ 85.) While Koroso said she would accommodate Pellegrini's request after she returned from vacation, Koroso's vacation was not set to begin until September 7. (See Defs. SMF ¶ 86, Dkt. No. 26:20.)
Defendants allege that Koroso spoke with Parkhurst about the August 22 events and that Parkhurst denied any wrongdoing and blamed Pellegrini's boyfriend's calls for interfering with work. (See id. at ¶¶ 87-88.) And according to defendants, after this lone conversation, "Koroso assumed the situation between Pellegrini and Parkhurst was resolved." (Id. at ¶ 89; see also Bratten Aff., Pl. Ex. 7, Koroso Dep. at 48-54, Dkt. No 32:7.)
On September 7, 2007, Sovereign terminated Pellegrini's employment allegedly due to her scheduling conflicts and attendance problems. (See Defs. SMF ¶¶ 91-104, Dkt. No. 26:20.) Parkhurst was later fired, reportedly based on a complaint Pellegrini made after her termination to the hotel's General Manager, Suparmanto. (See Pl. Resp. SMF ¶ 123, Dkt. No. 30; see also Bratten Aff., Pl.Ex. 4, Dkt. No. 32:4; Bratten Aff., Pl.Ex. 7, Koroso Dep. at 86-90, Dkt. No. 32:7.)
On February 14, 2008, Pellegrini filed a verified complaint with the New York State Division of Human Rights and the Equal Employment Opportunity Commission. (See Bratten Aff., Pl.Ex. 1, Dkt. No. 32:1.) On August 8, 2008, after dismissing her verified complaint, Pellegrini received a right-to-sue letter notifying her of the right to file a civil action under Title VII in state or federal court. (See Compl. ¶ 5, Dkt. No. 1.) Consequently, on September 24, 2008, Pellegrini commenced this action against Sovereign, Koroso, Laurin, and Hamzaoui, alleging retaliation and gender-based hostile work environment discrimination. (See id. at ¶¶ 32-44.) In asserting her hostile work environment claim, Pellegrini alleged that defendants subjected her to a pattern of discriminatory conduct by creating, condoning, and failing to correct an intimidating, hostile, and offensive work
The standard for the grant of summary judgment is well established and will not be repeated here. For a full discussion of the standard, the court refers the parties to its previous opinion in Bain v. Town of Argyle, 499 F.Supp.2d 192, 194-95 (N.D.N.Y.2007). In the fact-intensive context of a discrimination action, "direct evidence of discriminatory intent is rare and such intent often must be inferred from circumstantial evidence found in affidavits and depositions." Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir.2001); see also Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994) ("A trial court must be cautious about granting summary judgment to an employer when ... its intent is at issue.").
As a preliminary matter, the court notes that "individuals are not subject to liability under Title VII." Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir.2000) (per curiam) (citation omitted). Accordingly, Pellegrini's Title VII claims against Koroso, Laurin, and Hamzaoui are dismissed. See Patterson v. County of Oneida, N.Y., 375 F.3d 206, 221 (2d Cir.2004).
Under Title VII, it is "an unlawful employment practice for an employer ... to discharge any individual, or otherwise to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1).
"A hostile work environment claim requires a showing (1) that the harassment was `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,' and (2) that a specific basis exists for imputing the objectionable conduct to the employer." Alfano v. Costello, 294 F.3d 365, 374 (2d Cir.2002) (quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir.1997)). Under the first prong, the plaintiff must demonstrate that "the workplace was so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of her employment were thereby altered." Id. (citations omitted). The plaintiff must show both that the misconduct was "severe or pervasive enough to create an objectively hostile or abusive work environment" and that she "subjectively perceive[d] that environment to be abusive." Id. And to "meet the threshold of severity or pervasiveness," incidents must be "sufficiently continuous and concerted" rather than episodic or isolated. Id. (internal quotation marks and citation omitted).
The second prong requires that the plaintiff demonstrate a basis for imputing the misconduct to the employer. Under Title VII, "employers are not automatically liable for sexual harassment perpetrated by their employees." Petrosino v. Bell Atl., 385 F.3d 210, 225 (2d Cir.2004) (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)). Rather, where the harassment is attributed to the plaintiff's co-worker, "the employer will be held liable only for its own negligence." Distasio v. Perkin Elmer Corp., 157 F.3d 55, 63 (2d Cir.1998) (citing Faragher, 524 U.S. at 802-07, 118 S.Ct. 2275). Accordingly,
Here, defendant Sovereign devotes a large part of its papers to arguing that the events alleged neither occurred over a sufficient length of time in the aggregate nor constituted sufficiently severe incidents individually.
Second, even if Sovereign could conclusively prove that it provided a reasonable avenue for its Albany hotel employees to make complaints, there is ample evidence from which a reasonable jury could find that Sovereign knew about Parkhurst's conduct yet failed to take appropriate remedial action. Although Sovereign disputes the specificity and extensiveness of Pellegrini's complaints, there is no dispute that Pellegrini repeatedly voiced her concerns and complaints to her three immediate supervisors, consistent with Sovereign's proffered policy which designates immediate supervisors to receive reports of sexual harassment. (See id.; see also Coyne Decl., Defs. Ex. 11, Laurin Dep. at 15-16, Dkt. No. 26:12.) Moreover, it is undisputed that Pellegrini filed a written complaint with Hamzaoui, who was the manager on duty the night of August 22. Accordingly, there are sufficient grounds upon which to impute knowledge of Parkhurst's conduct and Pellegrini's complaints to Sovereign. Equally important, the quantity and nature of Pellegrini's complaints and the consequent actions—or inaction—of Koroso, Laurin, and Hamzaoui manifest the potential unreasonableness of Sovereign's response. Specifically, even assuming Koroso addressed Pellegrini's phone call complaints adequately, the record is otherwise devoid of any evidence demonstrating that Sovereign took Pellegrini's complaints seriously or responded to them in any meaningful way by conducting an investigation, maintaining a contemporaneous record, providing additional oversight, or making followup inquiries. Instead, the testimony of Pellegrini's supervisors, particularly Koroso, indicate that Pellegrini's complaints were given minimal attention and were addressed largely in the context of how they would impair her job performance. (See, e.g., Bratten Aff., Pl.Ex. 7, Koroso Dep. 37-54, Dkt. No. 32:7; Bratten Aff., Pl.Ex. 8, Hamzaoui Dep. at 38-43, 61-62, Dkt. No. 32:8;.)
Therefore, in light of the significant issues of material fact that remain, the court denies Sovereign's motion for summary judgment on Pellegrini's discrimination claim of hostile work environment.
Title VII provides that "[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing." 42 U.S.C. § 2000e-3(a).
Once a prima facie case of retaliation is established, the burden shifts to the employer to "proffer[] a legitimate, non-retaliatory reason for the challenged employment decision." Jackson, 348 Fed. Appx. at 669. If the employer proffers a legitimate, non-retaliatory reason for the challenged employment action, the presumption of retaliation drops out, and the employer "will be entitled to summary judgment ... unless the plaintiff can point to evidence that reasonably supports a finding of prohibited [retaliation]." James v. N.Y. Racing Ass'n, 233 F.3d 149, 154 (2d Cir.2000). The plaintiff must then present sufficient evidence to "permit a rational factfinder to conclude that the employer's explanation is merely a pretext for impermissible retaliation," Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir.2001), and that "the prohibited factor was at least one of the motivating factors," Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir.2008) (internal quotation marks and citation omitted).
Here, Pellegrini can clearly demonstrate that she engaged in a protected activity by making her complaints, that Sovereign knew of this protected activity, and that she suffered an adverse employment action when she was terminated. Sovereign takes issue with the fourth prong of the prima facie case, contending that Pellegrini has failed to demonstrate any causal connection between her complaints and her termination. And while Pellegrini's basis for a nexus appears somewhat thin, the temporal proximity of her complaints and termination combined with her testimony that Koroso became unfairly critical of her after August 22, (see Bratten Aff., Pl.Ex. 6, Pellegrini Dep. at 201-03, Dkt. No. 32:6), are enough to establish a causal connection.
In response, Sovereign has proffered a legitimate, non-retaliatory reason for terminating Pellegrini. There is little debate between the parties that Pellegrini's scheduling limitations, restrictions, and irregularities were constant from the beginning to the end of her employment. However, although Sovereign admittedly consented to Pellegrini's scheduling conditions upon hiring her, the parties dispute whether those conditions were only predicated on treating her mother or whether they also contemplated Pellegrini's need to take care of her children. In addition, as discussed in footnote four, there is some evidence suggesting that Sovereign did not take any adverse action against other employees with similar scheduling transgressions. And while not entirely inconsistent, Koroso's testimony does create some confusion as to the timing of and basis for Sovereign's decision to terminate Pellegrini. (See Bratten Aff., Pl.Ex. 7, Koroso Dep. at 61-64, Dkt. No. 32:7.) The reliability of Sovereign's records is also in dispute.
Therefore, because the record sufficiently supports Pellegrini's contention that Sovereign's proffered explanation was a pretext for impermissible retaliation, the court denies Sovereign's motion for summary judgment on Pellegrini's retaliation claim.
"[C]laims brought under [NYSHRL] are analytically identical to claims brought under Title VII." Torres v. Pisano, 116 F.3d 625, 629 n. 1 (2d Cir.1997) (citation omitted); see also Weinstock v. Columbia Univ., 224 F.3d 33, 42 n. 1 (2d Cir.2000) ("The identical standards apply to employment discrimination claims brought under Title VII ... [and] New York Executive Law § 296 ...." (citations omitted)). Accordingly, as to Pellegrini's discrimination and retaliation claims against Sovereign, the motion for summary judgment is denied.
Unlike Title VII though, the NYSHRL provides several bases upon which an individual employee may be held liable. First, under N.Y. EXEC. LAW § 296(1), individual liability attaches where an employee is shown to have an "ownership interest or any power to do more than carry out personnel decision made by others." Patrowich v. Chem. Bank, 63 N.Y.2d 541, 542, 483 N.Y.S.2d 659, 473 N.E.2d 11 (1984). The "power to do more than carry out personnel decisions made by others" essentially amounts to the authority "to hire or fire" people. Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995), abrogated on other grounds, Ellerth, 524 U.S. 742, 118 S.Ct. 2257, and Faragher, 524 U.S. 775, 118 S.Ct. 2275. Here,
Employees may also be held individually liable under N.Y. EXEC. LAW § 296(6) for, among other things, aiding and abetting discriminatory practices. See Feingold v. New York, 366 F.3d 138, 157-58 (2d Cir.2004). In general, an aider and abettor is one "who actually participates in the conduct giving rise to a discrimination claim." Tomka, 66 F.3d at 1317 (citations omitted) (holding that individual may be liable where he actually assaulted the plaintiff); see, e.g., Maher v. Alliance Mortg. Banking Corp., 650 F.Supp.2d 249, 261-62 (E.D.N.Y.2009) (holding that individual may be liable where he engaged in harassment, assault, and intimidation); McIlwain v. Korbean Int'l Inv. Corp., 896 F.Supp. 1373, 1383 (S.D.N.Y.1995) (finding individual "actively participated" by engaging in discriminatory behavior); Poulsen v. City of N. Tonawanda, 811 F.Supp. 884, 900 (W.D.N.Y.1993) (holding that individual may be liable where he actually perpetrated harassment). Importantly, since "[i]t is the employer's participation in the discriminatory practice which serves as the predicate for the imposition of liability on others for aiding and abetting," Murphy v. ERA United Realty, 251 A.D.2d 469, 472, 674 N.Y.S.2d 415 (2d Dep't 1998), a plaintiff "cannot prevail against [an individual] on her state ... claims unless she can first establish the liability of [her employer]," DeWitt v. Lieberman, 48 F.Supp.2d 280, 293 (S.D.N.Y.1999).
Critical to this case, the Second Circuit has held that an individual may be liable under § 296(6) where he "not only took no action to remedy [the alleged] behavior although [he] was aware of it, but also terminated [plaintiff's] employment on the basis of impermissible factors." Feingold, 366 F.3d at 158. While the Feingold court did not explicitly state that an intermediate supervisor's failure to take any remedial action is sufficient to constitute aiding and abetting, this court concludes that Laurin and Hamzaoui's alleged conduct in ignoring, writing off, discouraging, and failing to investigate Pellegrini's complaints could amount to acquiescence in and aiding and abetting of the creation of a hostile work environment. See Lewis v. Triborough Bridge & Tunnel Auth., 77 F.Supp.2d 376, 381-84 (S.D.N.Y.1999) ("[T]he case law establishes beyond cavil that a supervisor's failure to take adequate remedial measures can rise to the level of `actual participation' under [NYSHRL] § 296(6)."); see, e.g., Romero v. Howard Johnson Plaza Hotel, No. 97 Civ. 3706, 1999 WL 777915, at *9 (S.D.N.Y. Sept. 29, 1999) (holding that a reasonable jury could find actual participation where supervisor repeatedly failed to intervene in or investigate discriminatory conduct and laughed at some of the conduct, thereby adding "fuel to the fire"); Hicks v. IBM, 44 F.Supp.2d 593, 600 (S.D.N.Y.1999) (finding individual liability may arise where plaintiff alleged that supervisor's failure to take adequate remedial actions amounted to approval, encouragement, or condonation of the discriminatory conduct). There is no evidence, however, that Laurin or Hamzaoui participated in any retaliatory conduct.
And as to Koroso, there is no question that her actions in handling Pellegrini's complaints and terminating Pellegrini, if performed on an impermissible basis, would subject her to liability under § 296(6) as well. See, e.g., Oliver v. Gen.
Therefore, the court grants defendants' motion for summary judgment as to Pellegrini's NYSHRL retaliation claim against Laurin and Hamzaoui, but denies the motion as to Pellegrini's remaining NYSHRL claims against Koroso, Laurin, and Hamzaoui.
With regard to Sovereign's challenge to the admissibility of Pellegrini's proffered affidavit, (see generally Def. Reply Mem. of Law, Dkt. No. 33 (challenging Pellegrini Aff., Dkt. No. 31)), the court is satisfied as to the adequacy of the record absent the affidavit. Nonetheless, while Sovereign's point is well taken, the affidavit is sufficiently compliant with the requirements of FED. R. CIV. P. 56(e)(1) and the principles outlined in Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969). The court appreciates Sovereign's concerns—and shares some skepticism—as to the basis for some of Pellegrini's contentions, especially those involving (1) Pellegrini's uncorroborated "beliefs" about Sovereign's employment records and (2) the events surrounding Pellegrini's work as a banquet server. Therefore, to the extent that the additional contents of Pellegrini's affidavit need be considered, the court will weigh such contents carefully.
Nonetheless, the evidence regarding other employees' failure to meet their scheduled hour requirements and the lack of any action taken by Sovereign against them may raise a question about the credibility of Sovereign's proffered reason for terminating Pellegrini.
