Wang v. Air China Limited et al

Filing 96

MEMORANDUM AND ORDER. The Court grants Defendants' motions for summary judgment as to Plaintiff's claims for retaliation under the NYCHRL and for punitive damages under the NYSHRL, and denies Defendants' motions for summary judgment as to Plaintiff's claims for sexual harassment under Title VII, the NYSHRL, and the NYCHRL, for retaliation under Title VII and the NYSHRL, and for aiding and abetting under the NYSHRL and the NYCHRL. Ordered by Judge Margo K. Brodie on 3/9/2020. (Valentin, Winnethka)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------HUAN WANG,
Plaintiff,

MEMORANDUM & ORDER
17-CV-6662 (MKB) (JO)

v.
AIR CHINA LIMITED and LB OCEANFRONT
CORP.,
Defendants.
-------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Huan Wang commenced the above-captioned action on November 15, 2017,
against Defendants Air China Limited (“Air China”) and LB Oceanfront Corp. (“Oceanfront”).1
(Compl., Docket Entry No. 1.) Plaintiff asserts claims for sexual harassment and retaliation in
violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000 et seq. (“Title VII”), New York
State Human Rights Law, N.Y. Exec. Law § 290 et seq. (the “NYSHRL”), and New York City
Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. (the “NYCHRL”), and for aiding and
abetting pursuant to the NYSHRL and NYCHRL. (Id. ¶¶ 77–123.) Plaintiff claims that she was
sexually harassed by Congtao Li, an employee of Air China, and that, after she reported the
harassment, Air China and her employer, LB Oceanside Corp. (“Oceanside”), retaliated against
her by forming a new company, Oceanfront, nearly identical to Oceanside, and effectively
terminating her employment. (See generally id.)

1

Plaintiff also named Congtao Li as a defendant in the action but withdrew all claims
against Li in March of 2018. (See Compl., Docket Entry No. 1; Notice of Voluntary Dismissal,
Docket Entry No. 21.)

Currently before the Court are Defendants’ motions for summary judgment.2 Plaintiff
opposes the motions.3 For the reasons set forth below, the Court grants in part and denies in part
Defendants’ motions.4
I.

Background
The following facts are undisputed unless otherwise noted.
Air China is an international airline licensed to conduct business in New York State.

(Defs. Joint Stmt. of Undisputed Facts Pursuant to L. Rule 56.1 (“Defs. 56.1”) ¶ 6, Docket Entry
No. 77.)5 Air China owns real property in Nassau County, located at 485 West Broadway, Long
Beach, New York (the “Long Beach Property”), which it uses to house its airline crews while
(Air China Mot. for Summ. J. (“Air China Mot.”), Docket Entry No. 75; Air China
Mem. in Supp. of Air China Mot. (“Air China Mem.”), Docket Entry No. 78; Oceanfront Mot.
for Summ. J. (“Oceanfront Mot.”), Docket Entry No. 79; Oceanfront Mem. in Supp. of
Oceanfront Mot. (“Oceanfront Mem.”), Docket Entry No. 82.)
2

(Pl. Mem. in Opp’n to Air China Mot. (“Pl. Opp’n to Air China Mot.”), Docket Entry
No. 83; Pl. Mem. in Opp’n to Oceanfront Mot. (“Pl. Opp’n to Oceanfront Mot.”), Docket Entry
No. 87.)
3

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Defendants have also moved to dismiss the Complaint. (Air China Mot. to Dismiss,
Docket Entry No. 36; Air China Mem. in Supp. of Air China Mot. to Dismiss, Docket Entry No.
58; Oceanfront Mem. in Supp. of Mot. to Dismiss, Docket Entry No. 44.) On May 24, 2018, the
Court referred the motions to Magistrate Judge James Orenstein for a report and
recommendation. (Order dated May 24, 2018; Order dated June 29, 2018.) By report and
recommendation dated June 6, 2019, Judge Orenstein recommended that the Court grant
Defendants’ motions as to the three NYCHRL claims, with leave to amend, and deny
Defendants’ motions in all other respects (“R&R”). (R&R, Docket Entry No. 91.) By Order
dated September 6, 2019, the Court consolidated the motions, in light of the R&R filed after the
parties had submitted the fully-briefed summary judgment motions. (Order dated Sept. 6, 2019.)
Because the Court now decides the summary judgment motions, the Court denies the motions to
dismiss as moot.
Defendants each submitted a document titled “Defendants’ Joint Rule 56.1 Statement
of Undisputed Facts,” which are almost identical. (See Rule 56.1 Stmt. in Supp. of Air China
Mot. (“Defs. 56.1”), Docket Entry No. 77; Rule 56.1 Stmt. in Supp. of Oceanfront Mot., Docket
Entry No. 85.) For purposes of this Memorandum and Order, the Court refers to the Rule 56.1
statement submitted by Air China as “Defs. 56.1.”
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2

they are in New York. (Id. ¶ 7.) In 2010, Air China entered into a contract with Oceanside to
manage and operate the Long Beach Property. (Id. ¶ 8.) In March of 2014, Oceanside hired
Plaintiff to work as a front desk clerk at the Long Beach Property. (Id. ¶ 21.) Plaintiff was
employed by Oceanside for thirty months, until December of 2016. (Id. ¶ 23.)
a.

Plaintiff’s sexual harassment allegations

Li was an employee of Air China and a manager at the Long Beach Property. (Pl. Aff. in
Opp’n to Defs. Mots. for Summ. J. (“Pl. Aff.”) ¶ 12, Docket Entry No. 86; Dep. of Congtao Li
(“Li Dep.”) 82:2–3, annexed to Decl. of Justin T. Kelton (“Kelton Decl.”) as Ex. 23, Docket
Entry No. 84-23.) 6 Plaintiff states that when she first met Li in August of 2014, they “had a
pleasant working relationship” and were “friendly” with each other. (Pl. Aff. ¶¶ 11–12.)
Starting in October of 2014, Li would “offer to use Air China’s money to buy groceries for
[Plaintiff] and told [her] that [she] would not have to worry about groceries if [she] were to ‘live
with him.’” (Id. ¶ 13.) Between February and May of 2015, Li asked her “several times to travel

Plaintiff argues that Defendants “voluntarily waived” deposing her “in this matter,” and
that she “accordingly . . . submits with this Opposition a detailed Affidavit providing her
testimony as to key factual predicates for her claims.” (Pl. Opp’n to Air China Mot. 2.)
Defendants object to Plaintiff’s affidavit, which they contend “offer[s] a new version of facts
contradicting . . . prior deposition testimony” taken in connection with other cases. (Defs. Reply
1, Docket Entry No. 89.)
“The ‘sham issue of fact’ doctrine ‘prohibits a party from defeating summary judgment
simply by submitting an affidavit that contradicts the party’s previous sworn testimony.’” Moll
v. Telesector Res. Grp., Inc., 760 F.3d 198, 205 (2d Cir. 2014) (emphasis omitted) (quoting In re
Fosamax Prods. Liab. Litig., 707 F.3d 189, 193 (2d Cir. 2013)). However, “if there is a
plausible explanation for discrepancies in a party’s testimony, the court . . . should not disregard
the later testimony because an earlier account was ambiguous, confusing, or simply incomplete.”
In re Fosamx Prods. Liab. Litig., 707 F.3d at 194 (quoting Rojas v. Roman Catholic Diocese of
Rochester, 660 F.3d 98, 106 (2d Cir. 2011)). To the extent there are discrepancies between
Plaintiff’s affidavit and her prior deposition testimony in other cases, the Court finds that there
are plausible explanations for such discrepancies. Accordingly, the Court considers Plaintiff’s
affidavit in deciding Defendants’ summary judgment motions.
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with him to see the United States,” and she rejected his requests. (Id. ¶ 14.) In May of 2015,
Plaintiff confided in Li about challenges she was experiencing in her personal life due in part to
an abusive relationship she had been in, and Li “listened intently.” (Id. ¶ 16.) As Plaintiff
prepared to move out of her home, Li offered to let her store her treadmill and freezer at the
Long Beach Property. (Id.)
Plaintiff states that “[a]fter learning of [her] personal issues, . . . Li’s behavior toward
[her] began to change dramatically,” and “he started to express a strong sexual interest in [her].”7
(Id. ¶ 17.) On May 10, 2015, Li asked Plaintiff to go to dinner with him. (Id. ¶ 18; Defs. 56.1
¶ 31.) Using the Oceanside company car, Li picked Plaintiff up at 145th Street and Broadway in
Manhattan. (Pl. Aff. ¶ 18.) After parking the car and speaking “for a while” near a park, Li
drove Plaintiff to a restaurant in Queens. (Id.) Over dinner, Li “offered to get [Plaintiff] a job
for which a friend of his was hiring, with increased pay and better career prospects,” to which
Plaintiff responded that she “would think about it.” (Id.) After dinner, Li began driving to Long
Island, despite Plaintiff’s request that he take her back to her home in Manhattan. (Id.) Li told
Plaintiff that instead of going home, where her “situation with [her] boyfriend was so messy,”
she “should get a hotel room with [Li] that night.” (Id.) Li then drove Plaintiff to the water, “put
his arm around [her], and suggested repeatedly that [they] ‘get a room in a hotel.’” (Id.)
Plaintiff continued to refuse Li’s advances and ask him to take her home. (Id.) Instead, Li drove
around Long Island, stopping at various hotels and suggesting they check into one together. (Id.)
Eventually, Li drove Plaintiff back home. (Id.)
On the drive to Manhattan, Li told Plaintiff that they “both have sexual needs and . . .

The Court notes that Plaintiff’s sworn statements that Li expressed sexual interest in
her and that he sexually harassed her are all disputed.
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could comfort each other.” (Id.) He also encouraged her to apply directly for a job with Air
China, where he “had influential friends . . . and would guarantee that [she] would get the job.”
(Id.) He “suggested that [Plaintiff] . . . rent an apartment in Flushing, Queens, so that he could
visit [her] often for sexual encounters,” and told her to “cover [her] legs because he could not
help thinking about biting them.” (Id.) Li “boasted that [if] anyone would go against him, their
lives would be miserable.” (Id.) Plaintiff continued to refuse Li’s advances, and he “became
very angry.” (Id.)
Plaintiff contends that following the May 10, 2015 incident, “work never felt the same.”
(Id. ¶ 19.) She was “nervous” and “scared” around Li, who she “knew was angry since [she]
rejected him,” and she “believed that if [she] continued to make him unhappy, he could and
would make [her] life miserable.” (Id.)
Throughout May of 2015, Li continued to make inappropriate and sexual comments to
Plaintiff while they were at work, including (1) asking her, on several occasions, to have a sexual
relationship with him; (2) telling her that he “would give [her] a ‘captain’s room free of charge’
for [her] to stay in after [she] moved out of [her] residence”; and (3) telling Plaintiff “about the
number of women he had sex with, and that when he was dating his first girlfriend, his
grandmother told him to be responsible for her,” which Plaintiff interpreted to mean that if she
agreed to have a relationship with him he would take care of her both at work and in her personal
life. (Id. ¶¶ 20–22.) Plaintiff continued to refuse Li’s advances, and also told him that she “did
not want to hear such comments from [her] boss.” (Id. ¶ 22.)
In late May of 2015, Li “entered the area where [Plaintiff] worked, blocking [her] from
leaving,” and “asked [her] to allow him to carry [her] on his back,” which he said would
“alleviate [Plaintiff’s] backache.” (Id. ¶ 25.) Plaintiff told him his comments were

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inappropriate, especially in light of his prior sexual advances and her refusals, and “in light of the
fact that [she] was wearing a short and delicate dress.” (Id.) Despite her refusals, Li continued
to request that Plaintiff allow him to carry her on his back. (Id.)
Due to her continuing concerns about working with Li, in May of 2015, Plaintiff asked
her colleague, Zhenmin Liu, to “try to be present and protect [her] when [she] had to work in . . .
Li’s presence at night,” which Liu did, at Plaintiff’s request, between May and July of 2015. (Id.
¶ 27.)
Plaintiff contends that from May until early July of 2015, Li “frequently visited [Plaintiff]
at the front desk . . . looking up and down [her] body and commenting that [she] was sexy and
dressed sexy,” stating on one occasion that “the lace parts of [her] clothes were ‘just like wearing
lingerie outside.’” (Id. ¶ 28.)
In July of 2015, after learning that Li had “purportedly sold” the items he had agreed to
store at the dormitory for her, Plaintiff confronted Li, and told him he “had no right to do that,”
and that her “items were not for sale.” (Id. ¶ 29.) Li became angry and said to Plaintiff: “Thank
God you were a female. If you were a man, I would not have talked to you so peacefully.” (Id.)
Li also “threatened to damage [Plaintiff’s] freezer.” (Id. ¶ 30.) Plaintiff recorded their
conversation. (Id. ¶ 29.) Following that conversation, Plaintiff began parking her car in view of
a surveillance camera because she feared Li would damage her car. (Id. ¶ 30.)
b. Air China investigation
In June of 2015, Plaintiff reported Li’s conduct to Pengsheng Huang, a co-owner of
Oceanside, (id. ¶ 26), and in July of 2015, Huang’s partner, Gil Yu, sent Huang’s complaint
reporting Li’s conduct, including his alleged harassment of Plaintiff, to Yuelong Zhou, general
manager of Air China’s New York office, (id. ¶ 31). In October of 2015, Huang traveled to

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Beijing, China, to formally complain about Li’s conduct, including his alleged harassment of
Plaintiff. (Defs. 56.1 ¶ 52.) In October or November of 2015, Zhou interviewed Plaintiff in
connection with the sexual harassment allegations. (Pl. Aff. ¶ 34; Defs. 56.1 ¶ 53.) Plaintiff
contends that the interview was “very brief” and that Zhou “told [her] that since [she] was not
forcibly sexually assaulted, it did not count as sexual harassment.” (Pl. Aff. ¶ 34.) Plaintiff was
also interviewed by a second Air China employee, Mr. Yang,8 in November of 2015. (Id. ¶ 35.)
On November 9, 2015, an Air China staff member interviewed Li. (Interview Tr.,
annexed Kelton Decl. as Ex. 5, Docket Entry No. 84-5.) Li was asked only one question
regarding sexual harassment, to which he responded that “no such incident [had] ever
happened,” and described the allegations against him as “purely false.” (Id. at 4.)
Air China’s Flight Team Headquarter Discipline Inspection Committee issued a report
dated December 10, 2015 finding that Plaintiff had “clearly stated that [Li] has never
substantially harassed or physically contacted her, but according to the United States laws, the
verbal implication and implication by affiliation relationship are also deemed as harassing
behaviors.” (Report dated Dec. 10, 2015, annexed to Kelton Decl. as Ex. 8, Docket Entry No.
84-8.) The investigation concluded that under Chinese law, the allegations did not establish that
Li has sexually harassed Plaintiff, but recommended that Li be transferred from the Long Beach
Property in light of various issues between him and Oceanside management and staff. (Id.)
c.

Termination of Oceanside contract and end of Plaintiff’s employment

In November of 2016, Plaintiff “was told that [she] would no longer be scheduled to work
beginning in December.” (Pl. Aff. ¶ 46.) On November 4, 2016, Air China exercised its right to

Plaintiff identifies this individual only as “Mr. Yang,” and states that his position is
“Secretary of the Community Party [O]rganization of Air China.” (Pl. Aff. ¶ 35.)
8

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terminate the contract with Oceanside, which, pursuant to the agreement, was effective as of
December 4, 2016. (Defs. 56.1 ¶¶ 105, 108.) Air China subsequently entered into an “at will
oral agreement with Oceanfront,” which had been formed on May 3, 2016. (Id. ¶¶ 110, 123.)
Plaintiff was not hired by Oceanfront, (id. ¶ 101), and contends that “Oceanfront hired back
almost all of the former Oceanside staff who worked at the Air China Dormitory, other than [her]
and Pengsheng Huang,” (Pl. Aff. ¶ 12).
II. Discussion
a.

Standard of review

Summary judgment is proper only when, construing the evidence in the light most
favorable to the non-movant, “there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Wandering Dago, Inc. v.
Destito, 879 F.3d 20, 30 (2d Cir. 2018); see also Cortes v. MTA N.Y.C. Transit, 802 F.3d 226,
230 (2d Cir. 2015). The role of the court “is not to resolve disputed questions of fact but only to
determine whether, as to any material issue, a genuine factual dispute exists.” Rogoz v. City of
Hartford, 796 F.3d 236, 245 (2d Cir. 2015) (first quoting Kaytor v. Elec. Boat Corp., 609 F.3d
537, 545 (2d Cir. 2010); and then citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50
(1986)). A genuine issue of fact exists when there is sufficient “evidence on which the jury
could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. The “mere existence of a
scintilla of evidence” is not sufficient to defeat summary judgment. Id. The court’s function is
to decide “whether, after resolving all ambiguities and drawing all inferences in favor of the nonmoving party, a rational juror could find in favor of that party.” Pinto v. Allstate Ins. Co., 221
F.3d 394, 398 (2d Cir. 2000).

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b. Air China’s liability under the “joint employer” doctrine
Air China argues that Plaintiff’s claims against Air China cannot survive summary
judgment because the undisputed evidence establishes that Air China was not Plaintiff’s direct or
joint employer. (Air China Mem. 14.) In support, Air China argues that “there is no evidence
that Air China exercised any meaningful control over Oceanside’s employees,” and that the
evidence instead shows that Air China “was not involved in hiring, firing, discipline, pay, or
provision of benefits to Oceanside employees,” and that “these functions were exclusively
handled by Oceanside.” (Id. at 16.)
Plaintiff argues that “the realities of the relationship between Air China and Oceanside
demonstrate that Air China maintained total control over [Plaintiff] and Oceanside’s other
workers.” (Pl. Opp’n to Air China Mot. 23.) Plaintiff also argues that Air China had control
over Oceanside staff and their working conditions, and was involved in personnel decisions such
as hiring, firing, and disciplinary matters. (Id. at 23–26.)
While “the existence of an employer-employee relationship is a primary element of Title
VII claims,” Gulino v. N.Y. State Educ. Dep’t, 460 F.3d 361, 370 (2d Cir. 2006), “recognized
doctrines . . . enable an employee in certain circumstances to assert employer liability against an
entity that is not formally his or her employer,” Arculeo v. On-Site Sales & Mktg., 425 F.3d 193,
197 (2d Cir. 2005); see also Shiflett v. Scores Holdings Co., Inc., 601 F. App’x 28, 30 (2d Cir.
2015). Under the “joint employer” doctrine:
an employee, formally employed by one entity, who has been
assigned to work in circumstances that justify the conclusion that
the employee is at the same time constructively employed by
another entity, may impose liability for violations of employment
law on the constructive employer, on the theory that this other entity
is the employee’s joint employer.

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Arculeo, 425 F.3d at 198 (citing Clinton’s Ditch Coop. Co. v. NLRB, 778 F.2d 132, 137 (2d Cir.
1985)); Creddille v. MTA NYC Transit Auth., Nos. 11-CV-5442, 11-CV-5443, 11-CV-5444,
2014 WL 2917022, at *5 (E.D.N.Y. June 25, 2014), aff’d, 626 F. App’x 343 (2d Cir. 2015).
While the Second Circuit has “not yet ‘fully . . . described a test for what constitutes joint
employment in the context of Title VII,’ factors courts have used to examine whether an entity
constitutes a joint employer of an individual include ‘commonality of hiring, firing, discipline,
pay, insurance, records, and supervision.’” Shiflett, 601 F. App’x at 30 (first quoting Arculeo,
425 F.3d at 199 n.7; and then quoting St. Jean v. Orient–Express Hotels Inc., 963 F. Supp. 2d
301, 308 (S.D.N.Y. 2013)). Because the “joint employer” doctrine “looks to the relationship
between two possible employers when ‘an employee’ is ‘formally employed by one entity,’ and
seeks to impose liability on another . . . it does not help to answer the antecedent question . . . of
whether an individual is an employee of a single . . . entity.” Knight v. State Univ. of N.Y at
Stony Brook, 880 F.3d 636, 642 (2d Cir. 2018) (quoting Arculeo, 425 F.3d at 198).
The Court finds that there are genuine issues of fact as to whether Air China jointly
employed Plaintiff based on Huang’s testimony and Plaintiff’s sworn statements. Based on the
evidence before the Court, a reasonable jury could find that Li and Air China supervised and
managed the employees of Oceanside. Huang testified that Li was the “superior” and “leader” of
Huang and Yu, the de facto co-owners of Oceanside. (Dep. of Pengsheng Huang (“Huang
Dep.”) 48:15, annexed to Kelton Decl. as Ex. 27, Docket Entry No. 84-27.) Huang further
testified that he “[could] be disciplined, subordinated [and dismissed] by. . . Air China,” (id. at
269:10–13), and that Li told him that “you guys, every one of you have to listen to me,” (id. at
293:9–11). According to Huang, “all matters” at the Long Beach Property required Li’s
“permission.” (Id. at 374:14–15.) Oceanside employees followed Li’s instructions and did not

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“dare[] not to obey his orders.” (Id. at 374:18–375:9.) In her sworn affidavit, Plaintiff contends
that she and other Oceanside employees “often had to get approval from Air China personnel to
do various tasks,” and that “when Li gave directions to [Oceanside] personnel, we understood
that those directions came from Air China, and were to be followed.” (Pl. Aff. ¶¶ 10, 12.)
Plaintiff further contends that Li “directly managed and supervised [her] work, and the work of
the other Dormitory personnel,” and that Li once stated that he was “a very powerful person,”
who had “power over [Oceanside employees’] jobs.” (Id. ¶ 12.)
A reasonable jury could also find that Air China could and did hire, fire, and discipline
employees of Oceanside. Huang testified that Air China “ha[d] the authority to fire anybody” at
Oceanside and that Huang could not “stop that from happening.” (Huang Dep. 361:14–15.) Air
China could “tell [Oceanside employees] to just leave, to go away, if they didn’t feel they like[d]
[them].” (Id. at 361:18–20.) According to Huang, Air China could do so because it was
Oceanside’s “leader.” (Id. at 361:21–22.) Huang also testified that Air China actually hired or
fired Oceanside personnel on several occasions, (id. at 192:4–7), and that it was “Air China [that]
wanted to fire [Plaintiff],” and not him or Yu, (id. at 370:9–10). On February 19, 2016, Yu sent
Huang a message, informing him that “Air China had a meeting with me, they proposed to
change a person at the front desk, which is to replace [Plaintiff] with a male clerk.” (WeChat
Message dated Feb. 19, 2016, annexed to Kelton Decl. as Ex. 10, Docket Entry No. 84-10.)
Accordingly, the Court denies Air China’s motion for summary judgment as to joint
employer liability.
c.

Oceanfront’s successor liability

The Court also finds that a jury could reasonably find Oceanfront liable as the successor
to Oceanside.

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In determining successor liability in the Title VII context, courts in the Second Circuit
have generally applied the substantial continuity test. Gallo v. Wonderly Co., 12-CV-1868, 2014
WL 36628, at *12 (N.D.N.Y. Jan. 6, 2014) (“[T]he substantial continuity test has been
consistently applied to Title VII cases in the lower courts.” (citing E.E.O.C. v. Nichols Gas &
Oil, Inc., 518 F. Supp. 2d 505, 512 (W.D.N.Y. 2007))); Battino v. Cornelia Fifth Ave., LLC, 861
F. Supp. 2d 392, 403 (S.D.N.Y. 2012) (“Courts in [the Second] Circuit have applied [the
substantial continuity] test in, inter alia, the Title VII context.”); id. (collecting cases); Lamar v.
Inst. for Family Health, No. 09-CV-1154, 2011 WL 2432925, at *7 (N.D.N.Y. June 16, 2011)
(“District and appellate courts routinely apply the doctrine of substantial continuity to Title VII
cases.”), aff’d, 472 F. App’x 98 (2d Cir. 2012); see also Forde v. Kee Lox Mfg. Co., 584 F.2d 4,
5–6 (2d Cir. 1978) (“For an employer to be considered a successor there must be ‘substantial
continuity of identity in the business enterprise before and after a change.’” (quoting John Wiley
& Sons v. Livingston, 376 U.S. 543, 551 (1964))). “In the context of a Title VII action, successor
liability operates as an extra-contractual remedial tool for imposing certain labor obligations on a
new employer that has taken over operations of an old employer.” Lamara, 2011 WL 2432925,
at *7 (internal quotation marks omitted) (quoting Nichols Gas & Oil, Inc., 518 F. Supp. 2d at
510).
Under the substantial continuity test, courts look at “three essential factors: (1) whether
the successor had notice of the claim prior to the acquisition; (2) whether the successor
substantially continued the business operations of its predecessor following the acquisition; and
(3) whether the predecessor is able to provide the relief sought.” Gallo, 2014 WL 36628, at *12
(citing Lamar, 2011 WL 2432925, at *7); see also Nichols Gas & Oil, Inc., 518 F. Supp. 2d at
515 (collecting cases). “[N]o one factor is controlling, and it is not necessary that each factor be

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met to find successor liability.” Gallo, 2014 WL 36628, at *12 (quoting Nicholas Gas &
Oil, 518 F. Supp. 2d at 512).
A reasonable jury could find that (1) Oceanfront had notice of Plaintiff’s claim, (2)
Oceanfront substantially continued the business operations of its predecessor, Oceanside, and (3)
Oceanside is unable to provide the relief sought, and therefore Oceanfront is a successor to
Oceanside under the substantial continuity test.
Oceanfront continued the business of Oceanside. Yu testified that Oceanside was a
“management company that [took] care of the dormitory at Long Beach for Air China,” and had
no other business or customers. (Dep. of Oceanside/Hui Yu (“Yu Dep.”) 72:21–73:6, annexed to
Kelton Decl. as Ex. 31, Docket Entry No. 84-31.) Oceanfront’s “[b]usiness stay[ed] the same [as
Oceanside’s],” and, like Oceanside, Oceanfront had no customers other than Air China and did
not manage anything other than the Long Beach Property. (Id. at 73:7–15.) Yu helped to form
both Oceanside and Oceanfront, (id. at 11:11–20, 12:9–17), but both companies were formed
under his father’s name because his father was judgment proof, (id. at 74:16–75:16, 78:18–23).
In addition, Oceanfront had notice of Plaintiff’s harassment claims against Li. Yu learned
about Plaintiff’s allegations that she had been sexually harassed as early as July of 2015. (Id. at
87:2–19.) On July 13, 2015, Yu sent an email to Zhou, the general manager of Air China in New
York, the subject line of which was “About Li Cong Tao” (the “July 2015 Email”). (July 2015
Email, annexed to Decl. of Jacques Catafago (“Catafago Decl.”) as Ex. EE, Docket Entry No.
76-31; see also Yu Dep. 104:16–105:10.) Yu wrote to Zhou that “[t]his is what happened in the
last few months,” and attached a document addressed to “Air China Disciplinary Committee and
New York Office,” detailing various complaints about Li. (Id.) One section of the document,

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titled “Sexual harassment and taking petty advantages,” described Plaintiff’s allegations that Li
had sexually harassed her. (Id.)
Moreover, because Oceanside’s contract with its only client, Air China, was terminated,
and there is no indication it has continued any business operations, it likely cannot provide relief
to Plaintiff. (See Yu Dep. 72:18–73:6 (explaining that Oceanside’s business was to manage the
Long Beach Property for Air China, and that it never had any other customers).)
Accordingly, the Court denies Oceanfront’s motion for summary judgment on the issue of
successor liability.
d. Plaintiff’s Title VII claims are not time-barred
Defendants argue that Plaintiff’s Title VII claims are time-barred because “aside from the
‘alleged retaliatory non-hiring,’ all of Plaintiff’s allegations of unlawful conduct occurred
substantially more than 300 days prior to her EEOC filing.” (Air China Mem. 11; Oceanfront
Mem. 8.) Defendants further argue that the continuing wrong doctrine does not apply to
Plaintiff’s claim because “Plaintiff admitted that Li’s alleged inappropriate words or conduct
ended [in] July 2015” and that Plaintiff’s claim that she was “told to eat at her desk . . . does not
constitute actionable ‘sex harassment.’” (Air China Mem. 11; Oceanfront Mem. 8 & n.2.)
Plaintiff argues that her retaliation claim is not time-barred because the “major retaliatory
act — the de facto termination and refusal to hire — occurred on November 4, 2016 at the
earliest . . . [which is] within the 300-day window.” (Pl. Opp’n to Air China Mot. 15.) Plaintiff
further argues that her hostile work environment claim is timely because “the evidentiary record
contains numerous facts and circumstances within the statutory window that were part of the
pattern of hostility at issue.” (Id.)
Before filing a Title VII action in federal court, a plaintiff must timely file charges of

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employment discrimination with the EEOC. 42 U.S.C. § 2000e-5(e)(1); Rasko v. New York City
Admin. for Children’s Servs., 734 F. App’x 52, 54 (2d Cir. 2018) (“Under Title VII, a plaintiff in
New York must file a complaint with the EEOC within 300 days of a discriminatory act.” (first
citing 42 U.S.C. 2000e-5(e)(1); and then citing Pikulin v. City Univ. of New York, 176 F.3d 598,
599 (2d Cir. 1999))). In New York, a federal employment discrimination claim is time-barred
unless the plaintiff first files an EEOC charge within 300 days of the alleged discrimination.
Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 78–79 (2d Cir. 2015) (quoting 42 U.S.C.
§ 2000e-5(e)(1)); McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 75 (2d Cir. 2010). This
requirement is analogous to a statute of limitations. Vega, 801 F.3d at 79; Patterson v. Cty. of
Oneida, N.Y., 375 F.3d 206, 220 (2d Cir. 2004) (dismissing as untimely claims based on conduct
that occurred more than 300 days prior to the filing of EEOC charge).
Plaintiff filed her EEOC Charge on February 8, 2017.9 (EEOC Charge, annexed to Kelton
Decl. as Ex. 14, Docket Entry No. 84-14.) Accordingly, any conduct alleged to have taken place
before April 14, 2016, falls outside the 300-day window for purposes of Title VII.
i.

Hostile work environment claim

Under the continuing violation exception, if a plaintiff files a timely EEOC charge “as to
any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of

Plaintiff’s EEOC Charge consists of a handwritten EEOC intake questionnaire and a
detailed typed statement attached to the questionnaire. In Holowecki v. Federal Express
Corporation, 552 U.S. 389 (2008), the Supreme Court held that an EEOC intake questionnaire
could be a deemed a charge for the purposes of the Age Discrimination in Employment Act of
1967. 552 U.S. at 401–03. Courts in this Circuit have adopted the holding in Holowecki in the
Title VII context. See, e.g., Zaza v. Am. Airlines, No. 14-CV-4046, 2016 WL 11263663, at *6
(E.D.N.Y. Aug. 19, 2016), report and recommendation adopted, No. 14-CV-4046, 2017 WL
1076327 (E.D.N.Y. Mar. 22, 2017); Brown v. City of New York, No. 11-CV-2915, 2013 WL
3789091, at *7–9 (S.D.N.Y. July 19, 2013); Price v. City of New York, 797 F. Supp. 2d 219,
224–26 (E.D.N.Y. 2011) (collecting cases).
9

15

acts of discrimination under that policy will be timely even if they would be untimely standing
alone.” Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 155–56 (2d Cir. 2012) (quoting
Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993)). For the exception to apply, a plaintiff
must challenge at least one act related to the allegedly discriminatory policy within the 300-day
limitations period. See Patterson, 375 F.3d at 220 (“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 limitations period.”); Bonner v. Guccione,
178 F.3d 581, 584 (2d Cir. 1999) (finding that conduct outside the 300-day time period is
actionable “only if [the plaintiff] could demonstrate that she was subject to a continuous policy
and practice of discrimination, and that one act in furtherance of the policy and practice fell
within the 300-day period” (citing Acha v. Beame, 570 F.2d 57, 65 (2d Cir. 1978))); Predun v.
Shoreham-Wading River Sch. Dist., 489 F. Supp. 2d 223, 228 (E.D.N.Y. 2007) (“Essential to
application of the continuing violations theory is the allegation of at least one discrete act of
discrimination within the 300 day period.”).
While the continuing violation doctrine will not apply to “discrete acts” of discrimination,
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002), hostile work environment
claims are “different in kind from discrete acts” since “[t]heir very nature involves repeated
conduct,” and “[t]he ‘unlawful employment practice’ therefore cannot be said to occur on any
particular day,” McGullam, 609 F.3d at 75. “Accordingly, consideration of the entire scope of a
hostile work environment claim, including behavior alleged outside the statutory time period, is
permissible for the purposes of assessing liability, so long as an act contributing to that hostile
environment takes place within the statutory time period.” Id. (citation and internal quotation
marks omitted). However, actions outside the limitations period must be sufficiently similar in

16

kind to those within the relevant time period such that the events constitute the “same” hostile
work environment. Moll v. Telesector Res. Grp., Inc., 760 F.3d 198, 203 (2d Cir. 2014) (holding
that even facially-neutral incidents must be considered in determining whether a hostile work
environment exists under Title VII); McGullam, 609 F.3d at 77; see also Alfano v. Costello, 294
F.3d 365, 378 (2d Cir. 2002) (“[I]ncidents that are facially sex-neutral may sometimes be used to
establish a course of sex-based discrimination — for example, where the same individual is
accused of multiple acts of harassment, some overtly sexual and some not.”).
A jury could reasonably find that Plaintiff was subjected to at least one act within the 300day window that was related to the hostile work environment she has alleged. For example,
Plaintiff contends that: (1) in July or August of 2016, Li threw away the treadmill that he had
agreed to store at the Long Beach Property, and earlier had claimed to have sold, because he was
upset she had rejected his sexual advances, (Pl. Aff. ¶ 38); (2) in October of 2016, Li refused to
let Plaintiff eat her lunch while she was on duty, as was typically permitted, and became angry
and physically aggressive when she told him it was wrong to punish her for rejecting his sexual
advances, (id. ¶ 44); and (3) in November of 2016, Yu “tried to prevent [Plaintiff] from pursuing
[her] claims of sexual harassment,” telling her that she could not be successful against such a
“strong” company and that Air China was “preparing how to deal with [her],” contributing to her
feeling “even less secure at work,” (id. ¶ 45).
While the alleged acts alone may not constitute a hostile work environment, the Court
finds they are sufficiently connected to the pattern of harassment Plaintiff has alleged for the
continuing violation doctrine to apply. Accordingly, the Court finds that Plaintiff’s hostile work
environment claim is not time-barred.

17

ii.

Retaliation claim

The Supreme Court has held that “[e]ach discrete discriminatory act starts a new clock for
filing charges alleging that act.” Chin, 685 F.3d at 156 (quoting Morgan, 536 U.S. at 113). Such
discrete acts include termination and refusal to hire. See Chin, 685 F.3d at 157 (quoting Morgan,
536 U.S. at 114). As Defendants admit, the retaliation Plaintiff alleges — her non-hiring and
constructive termination by Oceanfront — occurred within the 300-day window. Accordingly,
Plaintiff’s Title VII retaliation claim is not time-barred.
e.

Failure to exhaust

Defendants argue that Plaintiff’s Title VII claims are “defective” because “[a]s a result of
Plaintiff’s failure to provide the correct address, Air China [and Oceanfront] never received any
communication from the EEOC, and never [were] afforded the opportunity to mediate this
dispute.” (Air China Mem. 12; Oceanfront Mem. 9.) Defendants further argue that Plaintiff’s
EEOC Charge is invalid because it is unverified, and should not be considered by the Court.
(Air China Mem. 12; Oceanfront Mem. 9.)
In response, Plaintiff argues that “Air China had actual notice of the EEOC proceedings,”
and that the allegedly incorrect address listed for Air China “was a direct result of [its] failure
to . . . correct publicly available information . . . or . . . contact the EEOC to ensure the accuracy
of [its] records.” (Pl. Opp’n to Air China Mot. 17–18.) Plaintiff further argues that the Court
should excuse Plaintiff’s failure to name Oceanfront, given the “context of this case,” including
Air China’s relationship with Oceanfront and Oceanside. (Pl. Opp’n to Oceanfront Mot. 16.)
Finally, Plaintiff argues that the lack of a formal verification is not fatal to her “pro se Charge
[that] is otherwise appropriate in all respects.” (Pl. Opp’n to Air China Mot. 19.)

18

i.

Notice of EEOC Charge and Right to Sue Letter

Pursuant to Title VII, “[w]henever a charge is filed by . . . a person . . . alleging that an
employer . . . has engaged in an unlawful employment practice, the [EEOC] shall serve a notice
of the charge . . . on such employer . . . within ten days, and shall make an investigation thereof.”
42 U.S.C. § 2000e-5(b). As the language of the statute makes clear, it is the EEOC’s obligation
to provide the employer with notice of the charge, not the individual filing the charge. The
statute further provides that “if within [180] days from the filing of such charge . . . the [EEOC]
has not filed a civil action . . . [or] entered into a conciliation agreement to which the person
aggrieved is a party,” the EEOC “shall so notify the person aggrieved,” who may then bring a
civil action within ninety days. 42 U.S.C. § 2000e-5(f)(1). In other words, as relevant here, the
language of the statute conditions the right to sue on an individual having filed a charge with the
EEOC, and then having received notice of her right to sue — not on the EEOC having served
notice of the charge on the employer.
In support of its argument that Plaintiff’s failure to provide the EEOC with accurate
information ultimately prevented Air China from mediating this dispute before the EEOC, Air
China makes a number of statements that the Court finds to be either inaccurate or misleading.
Air China’s contention that Plaintiff provided the wrong name to the EEOC is clearly
contradicted by Plaintiff’s EEOC Charge, which names “Air China, Limited” as one of the
organizations she believes has discriminated against her. (EEOC Charge 1.) Air China asserts
that Plaintiff “falsely lists Air China as having an address of East 52nd Street, New York, New
York, despite Wang’s actual knowledge . . . [that] the correct address for [its] New York office
[is] . . . 350 Fifth Avenue, New York, New York,” which Air China argues is apparent from a
draft complaint from February of 2016 that Plaintiff never filed, and the Complaint filed in this

19

action. (Air China Mem. 9.) However, Plaintiff did provide the 350 Fifth Avenue address in her
EEOC Charge, in the detailed typed statement attached to her handwritten EEOC Intake
Questionnaire form. (EEOC Charge 6 (listing Air China’s address as 350 5th Avenue, Suite
6905, New York, NY 10118).)10 As to the address listed on the EEOC Intake Questionnaire, in a
sworn affidavit submitted in support of her opposition to Air China’s motion to dismiss, Plaintiff
states that “[w]hen preparing [her] EEOC charge, the EEOC Investigator and [she] looked up Air
China’s address on the Internet.” (Pl. Aff. in Opp. to Air China Mot. to Dismiss (“Pl. MTD
Aff.”) ¶ 4, annexed to Kelton Decl. as Ex. 21, Docket Entry No. 84-21.) In addition, in its effort
to characterize Plaintiff’s actions as intentionally misleading, Air China fails to acknowledge that
the address Plaintiff listed is only one digit removed from its service of process address
registered with the New York Secretary of State, (NYS Dep’t of State Entity Information,
annexed to Catafago Decl. as Ex. B, Docket Entry No. 76-2 (listing service of process address as
150 East 42nd Street, New York, NY 10017)), suggesting a mistake rather than an intentional
effort by Plaintiff to prevent Air China from learning of the EEOC proceedings. Taken together,
these circumstances indicate that Plaintiff made a good faith effort to provide the EEOC with the
necessary information to contact Air China.
Oceanfront similarly asserts that Plaintiff’s failure to exhaust her administrative remedies
is “proven by . . . no EEOC Right to Sue Letter ever being issued or sent to Oceanfront.”
(Oceanfront Mem. 9 (emphasis omitted).) Oceanfront asserts that “Plaintiff was aware of the
correct name and address for Oceanfront . . . but inexplicably furnished no address information
regarding Oceanfront . . . to the EEOC,” and that “[d]ue only to Plaintiff’s failure to provide the

Plaintiff’s EEOC Charge consists of an EEOC Intake Questionnaire and a detailed
typed statement. (See EEOC Charge.) Because the attachment is not paginated, the Court refers
to the page numbers assigned by the Electronic Case Filing (“ECF”) system.
10

20

EEOC with Oceanfront’s correct address, Oceanfront never received any communication from
the EEOC.” (Id. at 9.) As a result, Oceanfront contends, it “was never afforded the opportunity
to mediate this dispute.” (Id. at 10.)
In her EEOC Charge, Plaintiff identified two entities she believed had discriminated
against her, one of which was “LB Oceanside, LLC.” (EEOC Charge 1.) In both her
handwritten EEOC Intake Questionnaire and the attached typed statement, Plaintiff listed the
Long Beach Property address for Oceanside.11 (Id. at 1, 6.) As discussed above, the Court finds
that a jury could reasonably find that Oceanfront is subject to liability for Plaintiff’s claims as a
successor to Oceanside. Accordingly, Plaintiff’s failure to name Oceanfront in her EEOC
Charge does not constitute a failure to exhaust her administrative remedies.
The Court further finds that a jury could reasonably find that Air China and Oceanfront
had actual notice of Plaintiff’s EEOC Charge. Plaintiff states in her sworn affidavit that “during
the summer of 2017, Air China’s counsel contacted [her] to inquire about the EEOC
proceedings, of which he was apparently already aware.” (Pl. MTD Aff. ¶ 4.) Plaintiff further
states that she “informed Air China’s counsel that [she] had initiated the proceedings on
February 8, 2017, and suggested that he contact the EEOC for a copy of the paperwork.” (Id.)
In a signed declaration submitted in connection with Air China’s motion to dismiss in this action,
counsel for Air China confirms that while representing Air China in a separate state court action,
he became aware that Plaintiff had filed a grievance against Air China with the EEOC. (Reply
Decl. of Jacques Catafago in Supp. of Air China Mot. to Dismiss (“Catafago MTD Decl.”) ¶ 7,
annexed to Catafago Decl. as Ex. LLL.) On August 8, 2017, counsel for Air China served

11

While one digit in the handwritten street address is slightly difficult to read, at least as
produced to the Court, the typed address makes clear that Plaintiff listed the correct address of
the Long Beach Property.
21

Plaintiff with a subpoena to produce various documents, including any information regarding her
EEOC complaint, which Plaintiff initially refused to comply with until she retained counsel. (Id.
¶¶ 8–9.) Counsel for Air China states that he attempted to reach the EEOC to learn more about
the Charge, but was “unable to reach anyone in the agency or address the charges with the
agency.” (Catafago MTD Decl. ¶ 9.) When Plaintiff eventually received a Right to Sue Letter
from the EEOC, she texted a copy of it to Air China’s counsel. (Pl. MTD Decl. ¶ 5; Catafago
MTD Decl. ¶ 10.) Based on this record, the Court determines that a jury could reasonably find
that Air China had notice of Plaintiff’s EEOC Charge.
The Court similarly finds that there are disputed issues of fact as to whether Oceanfront
had actual notice of Plaintiff’s EEOC Charge. Based on the evidence in the record regarding the
close relationships between Air China, Oceanside, and Oceanfront, as well as Oceanside’s
relationship with Oceanfront, the Court finds that a jury could reasonably find Oceanfront,
through Air China or Oceanside, had actual notice of Plaintiff’s EEOC Charge.
The Court further finds that Defendants have not demonstrated, for purposes of summary
judgment, that they were prejudiced by any claimed lack of notice.
ii.

Verification

Title VII requires that “[c]harges shall be in writing under oath or affirmation.” 42
U.S.C. § 2000e-5(b); Price v. City of New York, 797 F. Supp. 2d 219, 225 (E.D.N.Y.
2011) (“Title VII regulations require that ‘[a] charge shall be in writing and signed and shall be
verified.’” (citing 29 C.F.R. § 1601.9)). The purpose of the verification requirement is to
“protect[] employers from the disruption and expense of responding to a claim unless a
complainant was serious enough to support it by oath subject to liability for perjury.” Edelman
v. Lynchburg Coll., 535 U.S. 106, 113 (2002). In Edelman, the Supreme Court recognized the

22

object of the verification requirement, but observed that “[i]n requiring the oath or affirmation . .
. Congress presumably did not mean to affect the nature of Title VII as ‘a remedial scheme in
which laypersons, rather than lawyers, are expected to initiate the process.’” Id. at 115 (quoting
EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 124 (1988)).
While Plaintiff’s EEOC Charge does not include a formal verification, it is signed and
dated, and includes a detailed, typed statement of Plaintiff’s allegations. (See EEOC Charge.)
Plaintiff met with an EEOC investigator to fill out the Intake Questionnaire, (see Pl. MTD Aff.
¶ 4), and checked the box on the Intake Questionnaire indicating, in part, “I want to file a charge
of discrimination, and I authorize the EEOC to look into the discrimination I described above,”
(EEOC Charge 5). Taken together, these facts demonstrate that Plaintiff was sufficiently serious
about filing her EEOC Charge. While Defendants argue that they were prejudiced by the lack of
verification, the only prejudice they point to is the EEOC’s failure to notify Air China of the
EEOC Charge, based on Plaintiff’s failure to provide the correct address for Air China. (Air
China Mem. 13.) A jury could reasonably find that this was merely a ministerial error, and thus
does not go to the concerns addressed by verification, as outlined in Edelman.
Accordingly, the Court denies Defendants’ motion as to their arguments that Plaintiff has
failed to exhaust her administrative remedies.
f.

Title VII and NYSHRL sexual harassment claims

Air China argues that Plaintiff’s sexual harassment claims cannot survive summary
judgment because the record demonstrates that (1) no “individual incident . . . was
‘extraordinarily severe,’” (2) “Li’s alleged misconduct was not pervasive,” and (3) “Plaintiff,
herself, did not perceive the work environment to be hostile or abusive.” (Air China Mem. 21,
23.)

23

Plaintiff asserts that her “sex discrimination claims survive whether they are analyzed
under either a quid pro quo or hostile work environment theory.” (Pl. Opp’n to Air China Mot.
27.) In support, she argues that Air China “imposed its supervisor,” Li, on Plaintiff, and that Li
in turn “incessantly made sexual innuendo,” as well as “overt sexual advances,” and retaliated
against Plaintiff when she rejected him. (Id. at 28.) In addition, Plaintiff argues that when she
complained about the alleged harassment, those complaints were not taken seriously by Air
China, and that this “hostile environment . . . had a significant detrimental effect” on Plaintiff
and “ruined” her “feelings of safety and contentment at work.” (Id. at 28–29.)
Sexual harassment claims can be pursued under two legal theories: (1) quid pro quo
sexual harassment, where an individual’s tangible job benefits are directly premised on
submission to unwelcome sexual conduct, and (2) hostile work environment, where an individual
is subject to severe and pervasive discriminatory conduct altering her conditions of employment.
See Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 603 (2d Cir. 2006) (“Although the terms
‘quid pro quo’ and ‘hostile work environment’ do not appear in the text of Title VII, they are
useful to distinguish between ‘cases involving a threat which is carried out and offensive conduct
in general.”’ (quoting Mormol v. Costco Wholesale Corp., 364 F.3d 54, 57 (2d Cir. 2004))); see
also Reid v. Ingerman Smith LLP, 876 F. Supp. 2d 176, 181–82 (E.D.N.Y. 2012) (citing Gregory
v. Daly, 243 F.3d 687, 698 (2d Cir. 2001)) (noting that there is no reason to distinguish between
quid pro quo and hostile work environment harassment under Title VII); Richards v. N.Y.C.
Dep’t of Homeless Servs., No. 05-CV-5986, 2009 WL 700695, at *5 (E.D.N.Y. Mar. 15, 2009)
(examining a plaintiff’s claims of sexual discrimination under hostile work environment and quid
pro quo theories of sexual harassment); Gonzalez v. Beth Israel Med. Ctr., 262 F. Supp. 2d 342,
349–50 (S.D.N.Y. 2003) (stating that since the enactment of Title VII in 1964, sex

24

discrimination theories of quid pro quo and hostile work environment have become wellestablished). To the extent that the two theories of discrimination arise from a plaintiff’s
allegations, both theories may be considered in analyzing the same claim. See Reid, 876 F.
Supp. 2d at 182 (considering the plaintiff’s “claim of quid pro quo harassment as part of her
claim that she was subject to a hostile work environment by virtue of [the defendant’s]
conduct”).
Because, as discussed below, the Court finds that a jury could reasonably find that
Plaintiff has established her sexual harassment claims when analyzed under a hostile work
environment theory, the Court declines to analyze the claims under a quid pro quo theory.
To establish a Title VII hostile work environment claim, a plaintiff must “show that ‘the
workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently
severe or pervasive to alter the conditions of the victim’s employment and create an abusive
working environment.’” Duplan v. City of New York, 888 F.3d 612, 627 (2d Cir. 2018) (quoting
Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 102 (2d Cir. 2010)); Littlejohn, 795 F.3d at
320–21 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)); see also Rivera v.
Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 20 n. 4 (2d Cir. 2014) (“The same
standards [as are applied to Title VII] apply to the plaintiffs’ hostile environment claims arising
under the NYSHRL . . . .”); Summa v. Hofstra Univ., 708 F.3d 115, 123–24 (2d Cir. 2013)
(“Hostile work environment claims under both [federal law] and the NYSHRL are governed by
the same standard.” (citing Schiano, 445 F.3d at 609)). “This standard has both objective and
subjective components: the conduct complained of must be severe or pervasive enough that a
reasonable person would find it hostile or abusive, and the victim must subjectively perceive the
work environment to be abusive.” Bentley v. AutoZoners, LLC, 935 F.3d 76, 91 (2d Cir. 2019)

25

(quoting Raspardo v. Carlone, 770 F.3d 97, 114 (2d Cir. 2014)). A plaintiff must also show
“that the complained of conduct . . . creates such an environment because of the plaintiff’s”
protected characteristic. LeGrand v. Walmart Stores E., LP, 779 F. App’x 779, 782 (2d Cir.
2019) (quoting Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007)). The Second Circuit has
cautioned that:
While the standard for establishing a hostile work environment is
high, we have repeatedly cautioned against setting the bar too high,
noting that [w]hile a mild, isolated incident does not make a work
environment hostile, the test is whether the harassment is of such
quality or quantity that a reasonable employee would find the
conditions of her employment altered for the worse.
Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003) (alteration in original) (citation and internal
quotation marks omitted). A court should consider the totality of the circumstances and factors
such as “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 [the] employee’s work performance.” Boonmalert v. City of New York, 721 F. App’x 29, 33
(2d Cir. 2018) (quoting Littlejohn, 795 F.3d at 320–21); Patane, 508 F.3d at 113. In evaluating
whether a plaintiff has established a hostile work environment claim, the court must consider
facially neutral conduct that might “bolster a harassment claim” when the facially neutral
conduct is by the same individual who engaged in “overt[]” discrimination. See Daniel v. T&M
Prot. Res., LLC, 689 F. App’x 1, 3 (2d Cir. 2017) (citing Kaytor, 609 F.3d at 547–48)
(remanding with instructions to the district court to consider facially neutral incidents of
harassment in analyzing the plaintiff’s hostile work environment claim).
To hold an employer liable for a hostile work environment, “federal law requires the
plaintiff to show ‘a specific basis for imputing the conduct creating the hostile work environment
to the employer.’” Bentley, 935 F.3d at 90 (quoting Summa, 708 F.3d at 124). “Two such bases

26

exist: strict vicarious liability if an employer’s supervisor has created the hostile environment;
and negligence if a co-worker who is not a supervisor has created the environment, and the
employer, upon becoming aware of the misconduct fails to remedy it.” Id. (first citing
Wiercinski v. Mangia 57, Inc., 787 F.3d 106, 113 (2d Cir. 2015); and then citing Summa, 708
F.3d at 124).
After assessing the totality of the alleged conduct, the relevant factors, and the Second
Circuit’s caution against “setting the [hostile work environment] bar too high,” Terry, 336 F.3d.
at 148, the Court concludes that a jury could reasonably find that Plaintiff has established a
sexual harassment hostile work environment claim. A reasonable jury could find that Li, as a
supervisor for Air China, made repeated, unwanted sexual advances toward Plaintiff and created
an environment that was both objectively and subjectively abusive.
Li testified that he was a “manager of the Air China facility,” i.e. the Long Beach
Property. (Li Dep. 82:2–3.) Huang testified that “all matters” at the Long Beach Property
required getting Li’s “permission.” (Id. at 374:14–15.) In her sworn statement, Plaintiff states
that as “Air China’s manager of the dormitory, . . . Li directly managed and supervised her work,
and the work of the other Dormitory personnel.” (Pl. Aff. ¶ 12.)
In addition, Plaintiff states that over the course of at least three months, Li (1) suggested
she live with him, (2) asked her to travel with him, (3) expressed a strong sexual interest in her,
(4) asked her, on several occasions, to have a sexual relationship with him, (5) discussed his
sexual relationships with other women, and (6) made comments of a sexual nature about her
body and her clothing. (Pl. Aff. ¶¶ 13–14, 17–18, 20–22, 28.) Plaintiff further states that, on one
occasion, Li took her to dinner and asked her to share a hotel room with him. (Id. ¶ 18.) Even
after she refused and asked him to take her home, Li refused to take her home and instead drove

27

her around to various hotels, told her that they “both have sexual needs and . . . could comfort
each other,” suggested she rent an apartment where “he could visit [her] often for sexual
encounters,” and told her to “cover [her] legs because he could not help thinking about biting
them.” (Id.) Plaintiff contends that, on another occasion, Li “blocked [Plaintiff] from leaving”
her work area and continuously suggested that she “allow him to carry [her] on his back” to
relieve her back pain, despite refusing his request and telling him that she thought his
“suggestion was inappropriate,” especially “in light of his prior sexual demands . . . and in light
of the fact that [she] was wearing a short and delicate dress.” (Id. ¶ 25.) Plaintiff asserts that, on
various occasions, Li became angry that she refused his advances and punished her for her
refusals. (Id. ¶¶ 18–19, 29–30.) As discussed above, some of this asserted conduct occurred
after April 14, 2016. (See id. ¶ 44 (stating that Li refused to let Plaintiff eat lunch while on duty
as punishment for Plaintiff rejecting his sexual advances); id. ¶ 38 (stating that in July or August
of 2016, Li threw out Plaintiff’s treadmill because he was upset that she had rejected his sexual
advances).) Drawing all inferences in favor of Plaintiff, the non-movant, the Court finds that a
jury could reasonably find that these acts were related to the course of discriminatory conduct
that Plaintiff has alleged prior to April 14, 2016.
Plaintiff states in her sworn statement that as a result of Li’s conduct, “work never felt the
same,” and that she was “very nervous” and “often scared” around Li. (Id. ¶ 6.) In addition,
Plaintiff argues that Air China’s failure to take Plaintiff’s complaint seriously further contributed
to the hostile work environment. (See, e.g., id. ¶ 34 (stating that when Zhou, the general
manager of Air China’s New York officer, interviewed Plaintiff about her sexual harassment
complaint, he told her that her allegations did not constitute sexual harassment because she “was
not forcibly sexually assaulted,” and that this contributed to the fear and hostility Plaintiff

28

experienced at work).)
Accordingly, the Court finds that a jury could reasonably find that Plaintiff has
established sexual harassment hostile work environment claims under Title VII and the
NYSHRL, and denies Defendants’ motions as to these claims.
g.

Title VII and NYSHRL retaliation claims

Defendants argue that Plaintiff’s retaliation claims must fail because she cannot satisfy
any of the three elements of a prima facie case for retaliation. (Air China Mem. 25–29;
Oceanfront Mem. 12–17.) Oceanfront further argues that even if the Court finds that Plaintiff
has established her prima facie case, her claims still fail because Oceanfront had “legitimate
grounds not to hire . . . Plaintiff.” (Oceanfront Mem. 18.)
Plaintiff argues that she has presented sufficient facts to raise a triable issue with respect
to her retaliation claim,” both as to her prima facie case of retaliation and as to Defendants’
contention that there were legitimate and non-pretextual reasons for Oceanfront not to hire her.
(Pl. Opp’n to Air China Mot. 29; Pl. Opp’n to Oceanfront Mot. 21.)
Title VII and NYSHRL retaliation claims are assessed using the McDonnell Douglas
burden-shifting framework. Littlejohn, 795 F.3d at 315 (“Retaliation claims under Title VII . . .
are . . . analyzed pursuant to . . . the McDonnell Douglas burden-shifting evidentiary
framework.” (citing Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010))); Fincher v. Depository
Tr. & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010) (same); see also Holcomb v. State Univ.
of N.Y. at Fredonia, 698 F. App’x 30, 31 (2d Cir. 2017) (“Title VII . . . and NYSHRL claims for
retaliation are . . . ‘analyzed pursuant to Title VII principles.’” (quoting Hicks, 593 F.3d at 162,
164)). Under this framework, the plaintiff must first establish “a prima facie case of retaliation.”
Russell v. N.Y.U., 739 F. App’x 28, 32 (2d Cir. 2018) (quoting Hicks, 593 F.3d at 164). If the

29

plaintiff sustains this initial “de minimis” burden, Duplan, 888 F.3d at 626, a “presumption of
retaliation” arises and the defendant must “articulate a legitimate, non-retaliatory reason for the
adverse employment action,” Saji v. Nassau Univ. Med. Ctr., 724 F. App’x 11, 14 (quoting
Hicks, 593 F.3d at 164). “If the defendant does so, then the burden shifts back to the plaintiff . . .
[to] show that the reason offered by the employer is merely pretext, and that the employer’s
‘desire to retaliate’ was the actual ‘but-for cause of the challenged employment action.’” Id.
(quoting Ya-Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 70 (2d Cir. 2015)). “‘But-for’
causation does not, however, require proof that retaliation was the only cause of the employer’s
action, but only that the adverse action would not have occurred in the absence of the retaliatory
motive.” Duplan, 888 F.3d at 625 (quoting Vega, 801 F.3d at 90–91).
i.

Prima facie case

To establish a prima facie case of retaliation, a plaintiff must show: “(1) participation in a
protected activity; (2) that the defendant knew of the protected activity; (3) an adverse
employment action; and (4) a causal connection between the protected activity and the adverse
employment action.” Russell, 739 F. App’x at 32 (quoting Hicks, 593 F.3d at 164).
1.

Protected activity and Defendants’ knowledge

Defendants argue that “[b]ecause Air China is not Plaintiff’s employer or ‘joint
employer,’” the harassment Plaintiff alleges is not covered by Title VII, and “[t]herefore, neither
the July 2015 reporting of the alleged harassment nor Plaintiff’s participation in Air China’s
internal investigation of the alleged harassment qualify as a participation in a ‘protected
activity.’” (Air China Mem. 25; see also Oceanfront Mem. 12–13.) In addition, Oceanfront
argues that Plaintiff cannot show she participated in a protected activity because “Plaintiff’s
refusal of her friend Li’s off-premises, after-hours clumsy pass cannot substitute actionable

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sexual harassment,” and Plaintiff’s complaint about those same allegations and her participation
in the subsequent investigation cannot constitute participation in a protected activity.
(Oceanfront Mem. 12.)
In response, Plaintiff points to the “formal complaint . . . made to Air China [in October
of 2015] about . . . Li’s sexual harassment of [Plaintiff],” and Air China’s interview of Plaintiff
in connection to its investigation of Li, in which Plaintiff “reiterated the ongoing and pervasive
harassment.” (Pl. Opp’n to Air China Mot. 29.)
Filing either a formal or informal complaint challenging discrimination is a protected
activity for purposes of retaliation claims under Title VII. See Jagmohan v. Long Island R. Co.,
622 F. App’x 61, 63 (2d Cir. 2015); Summa, 708 F.3d at 126. “A complaint of discrimination
constitutes ‘protected activity’ only if (1) the plaintiff holds a good-faith belief that he suffered
discrimination because of a protected characteristic and (2) that belief is reasonable.” Jagmohan,
622 F. App’x at 64–65 (citing Galdieri–Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276,
292 (2d Cir. 1998)); Summa, 708 F.3d at 126 (holding that Title VII “protects employees [who] .
. . make[] informal protests of discrimination, including making complaints to management, so
long as the employee has a good faith, reasonable belief that the underlying challenged actions of
the employer violated the law” (alterations in original) (quoting Gregory v. Daly, 243 F.3d 687,
700 (2d Cir. 2001))).
Defendants arguments are unpersuasive. As discussed above, the Court finds that (1)
there are disputed issues of fact as to whether Air China was Plaintiff’s joint employer, and (2)
that Li’s alleged conduct constitutes actionable sexual harassment under Title VII. The evidence
supports a finding that Plaintiff reported Li’s alleged harassment to Huang, one of the de facto
owners of Oceanside, in June of 2015. (Pl. Aff. ¶ 26; Huang Dep. 29:5–17.) Oceanside

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informed Air China management in writing of Plaintiff’s allegations, (July 2015 Email), and Air
China investigated the claim, (Defs. 56.1 ¶ 50; Pl. Resp. to Defs. 56.1 ¶ 50, Docket Entry No. 85
(disputing the adequacy of the investigation but not that it took place)). Plaintiff was interviewed
by Air China in connection with the investigation and discussed the allegations that Li had
sexually harassed her. (Tr. of Air China Interview of Pl., annexed to Catafago Decl. as Ex. FF,
Docket Entry No. 76-32.) Plaintiff’s complaints to management of both Oceanside and Air
China about the alleged harassment, of which Defendants were clearly aware, constitute
protected activity for purposes of Title VII.
2.

Adverse employment action

Defendants argue that Plaintiff was not subject to an adverse employment action because
(1) “none of the terms and conditions of Plaintiff’s employment at Oceanside changed from July
2015 (the date of her grievance) through the November 2016 termination of Oceanside’s at will
contract.” (Air China Mem. 26; Oceanfront Mem. 13.) Air China further argues that its
termination of its contract with Oceanside cannot “constitute an adverse employment action as
against Plaintiff.” (Air China Mem. 26.)
Plaintiff argues that the “major retaliatory act” was the “de facto termination [of] and
refusal to hire” Plaintiff. (Pl. Opp’n to Air China Mot. 15.)
In contrast to discrimination claims, an adverse employment action in the retaliation
context is one that a reasonable employee would find materially adverse, meaning it “could well
dissuade a reasonable worker from making or supporting a charge of discrimination.” Vega, 801
F.3d at 90 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. at 57); Fincher, 604
F.3d at 721 (same). The scope of actions that may be materially adverse is broader for purposes
of retaliation claims than for discrimination claims. See Hicks, 593 F.3d at 165 (citing

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Burlington, 548 U.S. at 67). In evaluating whether an action is materially adverse, “‘[c]ontext
matters,’ as some actions may take on more or less significance depending on the context.”
Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 568 (2d Cir. 2011) (citation
omitted); see also Hicks, 593 F.3d at 165 (noting that even minor acts that would be immaterial
in some situations may be material in others).
The Court finds that, for the purposes of summary judgment, Plaintiff has established that
she was subject to an adverse employment action. As discussed above, a reasonable jury could
find Oceanfront to be a successor to Oceanside. It is undisputed that after Air China terminated
its management contract with Oceanside, it entered into an identical agreement with Oceanfront,
and that the two companies — Oceanside and Oceanfront — had substantially overlapping
ownership and management. It is also undisputed that Plaintiff was employed by Oceanside, and
then subsequently was not re-hired by Oceanfront. The Court finds that a jury could reasonably
find that Plaintiff suffered a de facto termination, a clear adverse employment action.
3.

Causal connection

Defendants argue that even if the Court finds Plaintiff can satisfy the first two elements
of a prima facie case for retaliation, the Court should still grant summary judgment on Plaintiff’s
claims “because she cannot demonstrate a causal connection between any protected activity and
any adverse employment action.” (Air China Mem. 26; Oceanfront Mem. 13.) In support,
Defendants argue that “there is no evidence that Air China terminated the management contract
with Oceanside because of Air China’s retaliation against Plaintiff,” and that the evidence
instead shows that Air China terminated the contract due to Oceanside’s failure to comply with
various laws, as well as “major personnel conflicts” caused by Huang. (Air China Mem. 27–28;
Oceanfront Mem. 14–15.) In addition, Defendants contend that the nearly year-and-a-half period

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between Plaintiff’s complaint about the alleged harassment and the alleged termination further
undermines the argument that there is a causal connection between the two. (Air China Mem.
28; Oceanfront Mem. 15–16.)
In response, Plaintiff argues that there are triable issues of fact as to whether she has
demonstrated a causal connection between her complaint of harassment and her later de facto
termination. (Pl. Opp’n to Air China Mot. 29.) Plaintiff further argues that Defendants’
arguments regarding the timing of the alleged events ignore Yu’s admission, as well as Huang’s
testimony, that Air China delayed terminating Plaintiff because they were busy dealing with
other matters, including a law enforcement investigation. (Id. at 30 & n.14.)
A causal connection of retaliation can be shown either “(1) indirectly, by showing that
the protected activity was followed closely by discriminatory treatment, or through other
circumstantial evidence such as disparate treatment of fellow employees who engaged in similar
conduct; or (2) directly, through evidence of retaliatory actions directed against the plaintiff by
the defendant.” Littlejohn, 795 F.3d at 307, 319 (quoting Gordon v. N.Y.C. Bd. of Educ., 232
F.3d 111, 117 (2d Cir. 2000)). “Verbal comments may constitute direct evidence of
discrimination when made by a decisionmaker in the adverse employment action, and where
there is a close nexus between the comments and the action.” Silverio v. United Block Ass’n,
Inc., No. 13-CV-5001, 2015 WL 221151, at *8 (S.D.N.Y. Jan. 14, 2015) (quoting Messer v. Bd.
of Educ. of N.Y.C., 01-CV-6129, 2007 WL 136027, at *14 (E.D.N.Y. Jan. 16, 2007)). Indirect
evidence may include a “showing that the protected activity was closely followed in time by the
adverse action.” Colon v. Fashion Inst. of Tech., 983 F. Supp. 2d 277, 287 (S.D.N.Y.
2013) (quoting Manoharan v. Columbia Univ. Coll. of Physicians & Surgeons, 842 F.2d 590,
593 (2d Cir. 1988)); see also Feingold, 366 F.3d at 156–57 (“[T]he requirement that [the

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plaintiff] show a causal connection between his complaints and his termination is satisfied by the
temporal proximity between the two.” (collecting cases)); Nonnenmann v. City of New York, 02CV-10131, 2004 WL 1119648, at *22 (S.D.N.Y. May 20, 2004) (“Causation can be established
either indirectly by means of circumstantial evidence, for example, by showing that the protected
activity was followed by adverse treatment in employment, or directly by evidence of retaliatory
animus.” (quoting Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999))).
The Court agrees with Plaintiff that there are triable issues of fact as to whether Plaintiff
can establish a causal connection between her participation in a protected activity and
Oceanfront’s eventual decision not to hire her. There is evidence in the record to suggest, for
example, that Li, on behalf of Air China, told Yu to consider replacing Plaintiff with a male
employee, (WeChat Message dated Feb. 19, 2016; Yu Dep. 46:15–47:8), that Yu told Plaintiff
that Oceanfront was formed in order to terminate her and Huang, (Pl. Aff. ¶ 42; see also Huang
Dep. 281:13–22 (testifying that Oceanfront was formed “as a conspiracy between” his former
partner, Yu, and Zhou, of Air China)), and that Yu told Plaintiff that Air China had decided to
find a way to terminate Plaintiff as early as February of 2016, when Plaintiff had expressed to Yu
that she would “pursue [her] legal rights if [she] suffered retaliation for reporting . . . Li’s sexual
harassment,” (Pl. Aff. ¶ 49).
Accordingly, the Court finds that a jury could reasonably find that Plaintiff has
established a prima facie case of retaliation.
ii.

Defendants’ nonretaliatory reasons

Defendants have shown nonretaliatory reasons for Plaintiff’s de facto termination. As to
the decision not to hire Plaintiff, Oceanfront has pointed to various nonretaliatory reasons,
including, inter alia, her participation in unlawful sales of merchandise at the Long Beach

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Property and other performance issues. (See, e.g., Defs. 56.1 ¶¶ 118–19.) As to the termination
of the Oceanside contract, Air China has put forth evidence that Oceanside was in violation of
various laws and regulations, and that Huang was causing personnel issues as well as engaging in
unlawful activity. (Id. ¶¶ 118–21.)
iii. Pretext
The Court finds that there are triable issues of fact as to whether Defendants’
nonretaliatory reasons for Plaintiff’s de facto termination are pretext for retaliation. For
example, Plaintiff states that neither Oceanside nor Air China ever expressed issues with her
performance during her employment, (Pl. Aff. ¶ 50 (stating that “[p]rior to [her] reporting . . .
Li’s conduct . . . nobody complained to [her] about [her] job performance . . . [or] ever
indicate[d] that either Oceanside or Air China was looking to replace [her]”).) Huang testified
that prior to Plaintiff’s complaint, neither Yu nor anyone from Air China had ever expressed an
issue with Plaintiff’s performance. (Huang Dep. 376:4–14.) Taken together with the evidence
discussed above that Defendants sought to terminate Plaintiff at Li’s request, and replace her
with a male employee, the Court finds that this evidence of pretext could lead a reasonable jury
to conclude that Plaintiff’s de facto termination was because of her complaint alleging she had
been sexually harassed by Li.
Accordingly, the Court denies Defendants’ motions for summary judgment as to
Plaintiff’s Title VII and NYSHRL retaliation claims.
h. NYCHRL claims
Defendants argue that Plaintiff’s NYCHRL claims cannot survive summary judgment
because “there is no evidence, and Plaintiff does not allege, that any discriminatory conduct
occurred or had an impact in New York City,” and therefore Plaintiff “cannot . . . establish the

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requisite nexus to New York City.” (Air China Mem. 30; see also Oceanfront Mem. 20.)
In response, Plaintiff argues that “[c]ourts start their analysis with the threshold question
of whether a plaintiff lived or worked in New York City,” and that “the numerous City-related
facts set forth in [Plaintiff’s] Affidavit, and in [her Opposition] are sufficient to establish” that
her claims are covered by the NYCHRL. (Pl. Opp’n to Air China Mot. 30–31.)
“Under the NYCHRL, the impact of the employment action must be felt by the plaintiff
in [New York City].” Vangas v. Montefiore Medical Ctr., 823 F.3d 174, 183 (2d Cir. 2016)
(citing Fried v. LVI Servs., Inc., No. 10-CV-9308, 2011 WL 4633985, at *13 (S.D.N.Y. Oct. 4,
2011)); see also Robles v. Cox & Co., Inc., 841 F. Supp. 2d 615, 623 (E.D.N.Y. 2012) (“To state
a claim under the NYCHRL, the [p]laintiff must allege that the [d]efendant discriminated against
her ‘within the boundaries of New York City.’” (quoting Shah v. Wilco Sys., Inc., 806 N.Y.S.2d
553, 558 (1st Dep’t 2005))). “[W]here the alleged discriminatory act takes place outside of New
York City, the relevant location of the injury for purposes of the impact analysis is not the
Plaintiff’s residence, but the Plaintiff’s place of employment.” Robles, 841 F. Supp. 2d at 625.
Plaintiff states that when she began working for Oceanside, in 2014, she lived in New
York City. (Pl. Aff. ¶ 3.) She further statets that in October of 2015, she moved to a new
residence, also in New York City. (Id. ¶ 33.) Defendants point to the Complaint and Plaintiff’s
EEOC charge as evidence that Plaintiff is a resident of Suffolk County, not New York City.
(Defs. Reply 26–27; EEOC Charge (listing a Suffolk County address); Compl. ¶ 10 (alleging that
Plaintiff resides in Suffolk County).) In addition to her statements about her residency, Plaintiff
asserts that some portion of the alleged sexual harassment occurred in New York City. (See Pl.
Aff. ¶ 14 (stating that on at least one occasion, Li asked Plaintiff, while driving from Long
Beach, New York to Flushing, Queens, to go on vacation with him); id. ¶ 18 (stating that Li

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picked her up from her up in Harlem and took her to dinner in Flushing, Queens, and then
alleging that “while . . . driving back to New York City,” Li made comments to Plaintiff about
their sexual needs and about his “influential friends” at Air China who could give her a job,
suggested she rent an apartment so they could have sexual encounters, and told her to cover her
legs because he could not stop thinking about biting them); id. ¶ 13 (stating that Li often asked
Plaintiff to accompany him on trips using the Oceanside company car to shop for supplies in
Queens).)
The Court finds that Plaintiff’s retaliation claim lacks the necessary nexus to New York
City that is required under the NYCHRL. The alleged retaliation — Plaintiff’s de facto
termination — occurred on Long Island, outside of New York City. Termination is a discrete
discriminatory act. See Robles, 841 F. Supp. 2d at 623 (“Because termination is a discrete act,
the Plaintiff must sufficiently allege that her discriminatory termination, standing alone, violated
the NYCHRL.”). Because the relevant location for purposes of the impact analysis is Plaintiff’s
place of employment, not her residence, the impact of the claimed termination was felt on Long
Island, outside the boundaries of New York City. Accordingly, the Court grants Defendants’
summary judgment motion as to Plaintiff’s retaliation claim under the NYCHRL.
As to Plaintiff’s sexual harassment claim, Plaintiff’s statements are admittedly a little
unclear as to how much of the asserted discriminatory conduct, if any, took place in New York
City. However, drawing all inferences in favor of the non-movant, the Court concludes that a
jury could reasonably find that the impact of the asserted sexual harassment was felt in New
York City. Accordingly, the Court considers whether Plaintiff’s NYCHRL sexual harassment
claim survives summary judgment.
As explained above, the Court denies Defendants’ motions as to Plaintiff’s Title VII and

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NYSHRL sexual harassment claims. Because the NYCHRL is “more liberal” than its federal
and state counterparts, Makinen v. City of New York, 857 F.3d 491, 495 (2d Cir. 2017) (quoting
Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d Cir. 2009)), the Court denies
Defendants’ motion as to these claims under the NYCHRL. See Zann Kwan v. Andalex Grp.,
737 F.3d 834, 843 n.3 (2d Cir. 2013) (“[T]o the extent that the defendant has failed to show it is
entitled to summary judgment [under Title VII], it would not be entitled to summary judgment
under the more expansive standard of the NYCHRL.”); Alvarado v. Nordstrom, Inc., 685 F.
App’x 4, 8 (2d Cir. 2017) (“[T]here is no doubt that the standard for proving a NYCHRL hostile
work environment claim is lower than the standard for proving . . . NYSHRL hostile work
environment claims.”).
i.

Aiding and abetting claims

Defendants argue that Plaintiff’s aiding and abetting claims against Air China and
Oceanfront under the NYSHRL and the NYCHRL “ignore[] that [Plaintiff] released with
prejudice all claims against the individual that she alleges supposedly harmed her,” which
“operates to release at least in part the purported state and city law claims against [Defendants].”
(Air China Mem. 30–31 (citing NY-GOL § 15-108); Oceanfront Mem. 20–21 (citing NY-GOL §
15-108).) Air China further argues that aiding and abetting claims require there to be an
underlying violation, and therefore since Plaintiff’s underlying discrimination and retaliation
claims must fail, so must her aiding and abetting claims. (Air China Mem. 31.) Air China also
argues that Plaintiff’s aiding and abetting claims must be dismissed because “Air China cannot
be held liable . . . for aiding and abetting its own violation of the Human Rights Law.” (Id. at
31.) Oceanfront further argues that the Court should grant summary judgment as to Plaintiff’s
aiding and abetting claims against Oceanfront because “Oceanfront was not even in existence at

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the time the alleged aiding and abetting occurred with respect to the harassment and
discrimination.” (Oceanfront Mem. 20.)
In response, Plaintiff argues that Defendants’ contention that Plaintiff’s release of claims
against Li “is an admission requiring any liability to be reduced . . . ignore[s] [both] the wellsettled premise of respondeat superior . . . [and] that agreeing to discontinue claims against . . .
Li does not constitute an admission of any fact.” (Pl. Opp’n to Air China Mot. 31–32.) Plaintiff
further argues that her discontinuation of claims against Li is inadmissible pursuant to Rules 402
and 408 of the Federal Rules of Evidence because (1) “it is not a statement of fact” and (2)
“evidence of compromising a claim is inadmissible.” (Id. at 32.) As to Oceanfront’s argument
that it cannot be liable for aiding and abetting because it was not in existence at the time of the
alleged discrimination, Plaintiff argues that this position ignores Plaintiff’s claim that Oceanfront
is liable as the successor to Oceanside. (Pl. Opp’n to Oceanfront Mot. 23.)
The Court finds Defendants’ arguments unpersuasive. As discussed above, the Court
denies Defendants’ summary judgment motion as to Plaintiff’s NYSHRL claims and her
NYCHRL sexual harassment claim, and therefore Air China’s argument that the aiding and
abetting claims must be dismissed because there is no underlying violation fails. Similarly, the
Court rejects Oceanfront’s argument that it cannot be liable for violations that took place before
its formation because, as discussed above, the Court finds that a jury could reasonably find
Oceanfront liable as a successor to Oceanfront.
As to Defendants’ argument that their liability for Plaintiff’s aiding and abetting claims is
reduced due to her dismissal of her claims against Li, the Court finds Defendants’ reliance on
New York General Obligations Law § 15-108 to be misplaced. Defendants cite to only two
cases in support of this proposition, neither of which address or are relevant to the employment

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discrimination context. (Air China Mem. 31 (first citing Mathis v. United Homes, LLC, 607 F.
Supp. 2d 411, 430–31 (E.D.N.Y. 2009) (finding that section 15-108 would “bar any claim for
contribution” under New York Civil Practice Law and Rules section 1401 against co-defendants
“provided that they enter[ed] into settlement agreements with and obtained releases from the
plaintiffs, where the contribution claims [were] derivative of the state claims sounding in tort,
contract, statutory violations, fraud and/or negligence”); and then citing Banks Brussels Lambert
v. Credit Lyonnais (Suisse) S.A., 2000 WL 1364272, at *1 (S.D.N.Y. Sept. 20, 2000) (denying
motion to dismiss fault allocation defenses and finding that defendants could raise section 15108 defenses as to state law claims for, inter alia, aiding and abetting conversion and aiding and
abetting fraud)).) The Court agrees with Plaintiff that Defendants’ argument cannot be
reconciled with the respondeat superior doctrine that is the basis for any liability attributed to
Air China for Li’s alleged harassment of Plaintiff.
In addition, Air China argues that it “cannot be held liable . . . for aiding and abetting its
own violation of the Human Rights Law,” (Air China Mem. 31), but Plaintiff has alleged that Air
China aided and abetted Oceanfront (not itself) in violating of the NYSHRL and NYCHRL, (see
Compl. ¶¶ 106–09).
Accordingly, the Court denies summary judgment as to the aiding and abetting claims.
j.

Punitive damages

Defendants argue that Plaintiff’s claims for punitive damages should be dismissed
because “it is well settled that sex harassment claims under the NYSRHL do not provide for
punitive damages.” (Air China Mem. 31; Oceanfront Mem. 21.) Plaintiff “does not oppose
dismissal of any claim for punitive damages under the NYSHRL.” (Pl. Opp’n to Oceanfront
Mot. 24.) Accordingly, the Court grants Defendants’ unopposed motion as to Plaintiff’s claims

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for punitive damages under the NYSHRL.
III. Conclusion
For the foregoing reasons, the Court grants Defendants’ motions for summary judgment
as to Plaintiff’s claims for retaliation under the NYCHRL and for punitive damages under the
NYSHRL, and denies Defendants’ motions for summary judgment as to Plaintiff’s claims for
sexual harassment under Title VII, the NYSHRL, and the NYCHRL, for retaliation under Title
VII and the NYSHRL, and for aiding and abetting under the NYSHRL and the NYCHRL.
Dated: March 9, 2020
Brooklyn, New York
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge

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