Figueroa v. RSquared NY, Inc. et al
DECISION AND ORDER - Based on the foregoing reasons, the Defendants' 6 motion pursuant to Rule 12(b)(6) to dismiss the complaint is granted in part and dismissed in part. The motion is granted as to (1) Plaintiffs sex discrimination claim aga inst RSquared NY; (2) the Plaintiffs Title VII claims against Hirji and Ain Doe; and (3) the Plaintiffs NYSHRL claim against Hirji. The claims that may move forward are the quid pro quo sexual harassment claim under Title VII and the NYSHRL against RSquared NY and the NYSHRL claim against Ain Doe. The Clerk of the Court is respectfully directed to terminate Hirji as a defendant. Defendant Altaf Hirji terminated. So Ordered by Judge Arthur D. Spatt on 3/3/2015. (Coleman, Laurie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DECISION AND ORDER
-againstRSQUARED NY, INC., ALTAF HIRJI,
and AIN “DOE,”
Zabell & Associates, P.C.
Attorneys for the Plaintiff
1 Corporate Drive
Bohemia, NY 11716
By: Saul D. Zabell, Esq., Of Counsel
Cane & Associates LLP
Attorneys for the Defendant
200 Park Avenue
New York, NY 10166
By: Peter S. Cane, Esq.
Michael M. Hodgson, Esq., Of Counsel
SPATT, District Judge.
On July 21, 2014, the Plaintiff Marlen Figueroa (the “Plaintiff”) commenced this action
against the Defendants her former employer RSquared NY, Inc. (“RSquared NY”), Altaf Hirji
(“Hirji”), and Ain “Doe” (collectively the “Defendants”). The Plaintiff alleges quid pro quo
sexual harassment and sex discrimination in violation of Title VII of the Civil Rights Act of
1964, as codified, 42 U.S.C. §§ 2000e to 2000e-17; the New York State Human Rights Law,
New York Executive Law, Article 15; and other appropriate statutes, rules, and regulations.
On October 6, 2014, the Defendants moved pursuant to Federal Rule of Civil Procedure
(“Fed. R. Civ. P.”) 12(b)(6) to dismiss the complaint for failure to state a claim upon which relief
can be granted.
For the reasons set forth, the Defendants’ motion to dismiss is granted in part and denied
Unless stated otherwise, the following factual allegations are drawn from the
complaint and construed in a light most favorable to the non-moving party, the Plaintiff.
The Plaintiff is a female who at all relevant times was domiciled in Brentwood, New
RSquared NY is a New York corporation operating at 100 Heartland Boulevard,
Edgewood, New York 11717.
Upon information and belief, Hirji is the Owner and Chief Executive Officer of RSquared
Ain “Doe” is an individual who, during the period from September 2012 through October
2013, was an Operations Manager of RSquared NY. Upon information and belief, Ain was a
cousin of Hirji.
Non-party Neftaly Maroquin (“Maroquin”) is an individual who, during the period from
September 2012 through October 2013, was the Plaintiff’s supervisor at RSquared NY.
The Underlying Incident
In September 2012, the Plaintiff commenced employment as a painter with RSquared
NY. During the Plaintiff’s employment, she became pregnant. In May 2013, the fifth month of
her pregnancy, the Plaintiff suffered a miscarriage which caused her to experience post-partum
Maroquin directed the Plaintiff to return to full employment with RSquared NY when she
was ready, which the Plaintiff intended to do.
In October 2013, the Plaintiff contacted Maroquin to advise him that she was ready to
return to work. However, Maroquin advised the Plaintiff that she could not return to her
Shortly thereafter, the Plaintiff alleges that Ain “Doe” phoned the Plaintiff at her
residence and left a message. The message allegedly informed the Plaintiff that she could secure
her old position on the condition that the Plaintiff “hook up” with Ain “Doe.” (Compl., at ¶ 42.)
The Plaintiff “rejected Ain’s sexual advances forthwith,” (Id. at ¶ 43.) and immediately reported
this sexual advance to Maroquin.
According to the Plaintiff, neither Hirji nor RSquared NY took any corrective action in
connection with Ain Doe’s alleged unwelcomed sexual advance. The Plaintiff alleges that she
“was prevented from resuming employment with RSquared [NY] because she rebutted Ain’s
sexual advances.” (Id. at ¶ 47.) This action ensued.
A. The Rule 12(b)(6) Standard
Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a
complaint for “failure to state a claim upon which relief can be granted.” To survive a Rule
12(b)(6) motion to dismiss, a plaintiff must provide grounds upon which their claim rests
through “factual allegations sufficient ‘to raise a right to relief above the speculative level.’”
ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)(quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). In other
words, the complaint must allege “enough facts to state a claim to relief that is plausible on its
face.” Starr v. Sony BMG Music Entm’t, 592 F.3d 314, 321 (2d Cir. 2010)(quoting Twombly,
550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).
B. The Title VII and NYSHRL Claims Against RSquared NY
In relevant part, Title VII prohibits an employer from “discriminat [ing] against any
individual with respect to the . . . terms, conditions, or privileges of employment, because of such
individual’s . . . sex . . .” 42 U.S.C. § 2000e–2(a)(1). Similarly, Section 296 of the NYSHRL
prohibits an employer from refusing to hire or discharging an employee “because of an
individual’s . . . sex . . .” N.Y. Exec. Law § 296.1(a); Hernandez v. Hampton Bays Union Free
Sch. Dist., No. 12-CV-0789 (JS)(SIL), 2015 WL 667844, at *5 (E.D.N.Y. Feb. 13,
2015)(quoting N.Y. Exec. Law § 296.1(a)). The same standard is used when analyzing Title VII
and NYSHRL claims. Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007); Mandell v. Cnty. of
Suffolk, 316 F.3d 368, 377 (2d Cir. 2003).
When addressing Title VII claims, courts generally look to the Supreme Court’s ruling in
McDonnell Douglas v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), where the
Supreme Court set forth the elements that a plaintiff must prove in order to establish a prima
facie case at the summary judgment stage. In order for a plaintiff to establish a prima facie case
of gender discrimination in this framework, the plaintiff must establish that (1) she was within a
protected class; (2) she was qualified for the position; (3) she was subject to an adverse
employment action; and (4) the adverse action occurred under circumstances giving rise to an
inference of discrimination. Id.; Leibowitz v. Cornell Univ., 584 F.3d 487, 498 (2d Cir. 2009).
However, the survival of a complaint under Rule 12(b)(6) scrutiny in an employment
discrimination case “does not rest on whether it contains specific facts establishing a prima facie
case under McDonnell Douglas.” Lax v. 29 Woodmere Blvd. Owners, Inc., 812 F. Supp. 2d 228,
236 (E.D.N.Y. 2011). This is because, at the pleading stage, courts do not apply the McDonnell
Douglas burden shifting test to analyze the evidentiary support for the discrimination claims. See
Gonzalez v. Carestream Health, Inc., 520 Fed. Appx. 8, 9–10 (2d Cir. 2013)(“To survive a
motion to dismiss, a complaint alleging workplace discrimination . . . need not allege specific
facts establishing a prima facie case under McDonnell Douglas. . .”)(italics added); Rosario v.
City of New York, No. 11–CV 09008 (PAC)(SN), 2013 WL 782408, at *6 (S.D.N.Y. Jan. 9,
2013), adopted by 2013 WL 782581, at *2 (S.D.N.Y. Mar. 1, 2013)(“An ‘employment
discrimination plaintiff need not plead a prima facie case of discrimination [under McDonnell
Douglas Corp. v. Green.’” (quoting Bermudez v. City of New York, 783 F.Supp.2d 560, 575
(S.D.N.Y. 2011)(in turn, quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515, 122 S. Ct.
992, 152 L. Ed. 2d 1 (2002)))). Indeed, “[t]o measure a plaintiff’s complaint against a particular
formulation of the prima facie case at the pleading stage [would be] inappropriate,” because “the
prima facie case operates as a flexible evidentiary standard” that “should not be transposed into a
rigid pleading standard for discrimination cases.” Swierkiewicz, 534 U.S. at 507, 122 S. Ct. 992
Rather, “[this Court] consider[s] only whether the complaint includes factual allegations
sufficient ‘to raise a right to relief above the speculative level.’” Gonzalez v. Carestream Health,
Inc., 520 Fed. Appx. at 10 (quoting Twombly, 550 U.S. at 555, 127 S. Ct. 1955); see also Boykin
v. KeyCorp, 521 F.3d 202, 212–13 (2d Cir. 2008). In other words, “the Court asks only whether
a plaintiff has pled a prima facie case, not whether a plaintiff has established that case. Thus, the
standard is simply whether [the] plaintiff’s complaint, construed liberally, satisfies the federal
pleading requirements for a claim” of discrimination. Hitchins v. NYC Dept. of Educ., No. 11–
CV–4180 (RRM)(RML), 2013 WL 1290981, at *3 (E.D.N.Y. Mar. 28, 2013); see also
Swierkiewicz, 534 U.S. at 508, 122 S. Ct. 992 (quoting Fed. R. Civ. P. 8(a)(2))(finding that on a
motion to dismiss, a complaint alleging employment discrimination need only contain “a short
and plain statement of the claim showing that the pleader is entitled to relief”); Kassner v. 2nd
Ave. Delicatessen Inc., 496 F.3d 229, 238 (2d Cir. 2007)(“Plaintiffs need only comply with Rule
8(a)(2) by providing a short and plain statement of the claim that shows that plaintiffs are entitled
to relief and that gives the defendants fair notice of plaintiffs’ claims of age discrimination and
the grounds upon which those claims rest.”).
“Nevertheless, while a plaintiff need not allege specific facts establishing all the elements
of a prima facie case under McDonnell Douglas, these elements can still ‘provide [a helpful]
outline of what is necessary to render [a plaintiff’s] claims for relief plausible.’” Fanelli v. New
York, No. 13-CV-06627 (ADS)(WDW), 2014 WL 4160318, at *10 (E.D.N.Y. Aug. 18,
2014)(quoting Sommersett v. City of New York, No. 09 Civ. 5916 (LTS)(KNF), 2011 WL
2565301, at *5 (S.D.N.Y. June 28, 2011)).
In this case, the Plaintiff essentially advances what is called a quid pro quo theory of
sexual harassment. To make out a prima facie case for such a claim against an employer, “an
employee must show a tangible employment action, i.e., that an explicit alteration in the terms or
conditions of employment resulted from refusal to submit to a supervisor’s sexual advances.”
Rivera v. New York City Dep’t of Correction, 951 F. Supp. 2d 391, 400 (E.D.N.Y. 2013)(citing
Schiano v. Quality Payroll Systems, Inc., 445 F.3d 597, 603 (2d Cir. 2006)(quotations omitted).
A tangible employment action usually “constitutes a significant change in employment status,
such as hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits.” Schiano, 445 F.3d at 604
In this regard, “[t]he law of quid pro quo sexual harassment requires that the alleged
harasser is the supervisor who affects the conditions of employment.” Heskin v. Insite Adver.,
Inc., No. 03 CIV.2508 (GBD)(AJP), 2005 WL 407646, at *17 (S.D.N.Y. Feb. 22, 2005)(italics
added); see e.g., Lange v. Town of Monroe, 213 F. Supp. 2d 411, 423 (S.D.N.Y. 2002)(“[A] quid
pro quo harassment claim requires that the harasser be the plaintiff’s supervisor.”); Hernandez v.
Jackson, Lewis, Schnitzler & Krupman, 997 F. Supp. 412, 417 (S.D.N.Y. 1998)(“[I]f an alleged
harasser possesses no authority to affect the benefits or privileges of the harassed plaintiff’s
employment, plaintiff cannot sustain a Title VII claim of sexual harassment under the quid pro
quo theory.”)(citing Carrero v. New York City Hous. Auth., 890 F.2d 569, 579 (2d Cir. 1989));
Rivera v. Edenwald Contracting Co., 93 Civ. 8582 (LAP), 1996 WL 240003, at *3 (S.D.N.Y.
May 9, 1996)(“[B]y its very nature, the plaintiff must show that the ‘sexual advance was made
by a supervisor.’”); Blesedell v. Mobil Oil Co., 708 F. Supp. 1408, 1419 (S.D.N.Y. 1989)(“The
plaintiff has not alleged quid pro quo sex discrimination which requires that the harassment
come from a supervisor.”)(italics added); Lutes v. Loni Corp., No. 10-CV-57 (JPG), 2010 WL
1963170, at *3 (S.D. Ill. May 17, 2010)(granting the restaurant employer’s motion to dismiss
quid pro quo claim where plaintiff failed to allege any harassment by her superiors and where the
only specific instance was committed by a co-worker dishwasher). “Indeed, the quid in the
claim’s name represents the power or leverage that an employer and/or supervisor holds over his
subordinates, which usually does not exist between mere coworkers.” Lutes, 2010 WL 1963170,
at *3. For this reason, “an employer is always strictly liable for quid pro quo harassment.”
Dabney v. Christmas Tree Shops, 958 F. Supp. 2d 439, 460 (S.D.N.Y. 2013)(italics added), aff’d
sub nom. Dabney v. Bed Bath & Beyond, 588 F. App’x 15 (2d Cir. 2014).
In this case, construing the complaint liberally as the Court must on a motion to dismiss,
the Court finds that the Plaintiff states a plausible theory of quid pro quo sexual harassment
against RSquared NY. In particular, although the complaint does not specifically allege that Ain
“Doe” was the Plaintiff’s “supervisor,” it can reasonably be inferred based on Ain “Doe”’s status
as an Operations Manager and cousin of Hirji that he enjoyed the power to rehire her. In this
regard, at this stage of the litigation, the Plaintiff adequately alleges that Ain “Doe” was her de
facto supervisor, albeit without using that term.
Indeed, “quid pro quo harassment action can survive . . . if an employee who is not
plaintiff’s actual supervisor acted as a “de facto supervisor.” Heskin, 2005 WL 407646, at *17
(italics added); see e.g., Perks v. Town of Huntington, 251 F. Supp. 2d 1143, 1156 n. 11
(E.D.N.Y. 2003)(triable issue of fact existed as to whether harasser was plaintiff’s de facto
supervisor); Thomas v. Medco, 95 Civ. 8401 (JES)(MHD), 1998 WL 542321, at *10-11
(S.D.N.Y. Aug .26, 1998)(“[A] quid pro quo claim of harassment can rest on an alleged
harasser's authority to influence an adverse employment decision, if that influence is so
significant that the harasser may be deemed the de facto decisionmaker.”)(italics added);
Hernandez, 997 F. Supp. at 417 (whether alleged harasser was plaintiff’s de facto supervisor
presented a triable issue); Gostanian v. Bendel, 96 Civ. 1781 (LAP), 1997 WL 214966, at *6
(S.D.N.Y. Apr. 25, 1997)(worker who possesses the authority to affect the terms and conditions
of plaintiff’s employment is a de facto supervisor).
It is true that Maroquin’s notification that she could not return to her position at
RSquared NY preceded the alleged incident of sexual harassment by Ain “Doe.” See Brown v.
City of New York, No. 10 CIV. 6491 (LTS)(RLE), 2011 WL 2693677, at *8 (S.D.N.Y. July 11,
2011)(dismissing quid pro quo sexual harassment claim where only tangible employment action
taken against the Plaintiff preceded the first alleged incident of sexual harassment); Butler v.
Crittenden County, Ark., 708 F.3d 1044, 1049 (8th Cir. 2013)(tangible job detriment suffered by
female employee, which was suspension of her employment as deputy jailer at county jail, was
not caused by her rejection of her supervisor’s sexual advances, as would be required for claim
of quid pro quo harassment, where suspension occurred before employee complained about
supervisor’s behavior), rehearing and rehearing en banc denied (Apr. 10, 2013).
However, in the Court’s view, the relevant “tangible employment action” is, for purposes
of the Plaintiff’s quid pro quo sexual harassment claim, Ain “Doe”’s conditioning the Plaintiff’s
rehiring on her assent to his sexual demands, not her initial termination.
At this point, the Court takes note of Tarshis v. Riese Organization, 211 F.3d 30, 38 (2d
Cir. 2000), abrogated on other grounds by Swierkiewicz, 534 U.S. 506, 122 S. Ct. 992, 152 L.
Ed. 2d 1. There, the Second Circuit, addressing a traditional Title VII discrimination claim, held
that “[w]e see no reason why an employer should be allowed to accomplish an adverse
reassignment or demotion with invidious intent through layoff and rehiring when that same
action would be impermissible if done in the course of employment.” Id. Similarly, in
McDonnell Douglas, although not specifically addressed by the Supreme Court, the adverse
action at issue under Title VII, which the Court allowed to proceed, involved a refusal to rehire
the plaintiff, who had been laid off several months earlier in the course of the employer's general
reduction in workforce.
In addition, the Supreme Court has made clear in other contexts that the lack of right to
re-employment by contract or tenure does not preclude an employee from claiming that her
constitutional rights have been infringed by an employer’s refusal to rehire. See e.g., Rutan v.
Republican Party of Ill., 497 U.S. 62, 72, 110 S. Ct. 2729, 111 L. Ed. 2d 52 (1990)(rejecting
argument that First Amendment rights of public employees had not been infringed because they
had no legal entitlement to continued employment); Perry v. Sindermann, 408 U.S. 593, 597–98,
92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972)(a teacher’s lack of a contractual or tenure right to reemployment “is immaterial to his free speech claim”). The reasoning of those decisions is also
instructive in the Title VII context for purposes of this issue.
“There is simply no reason that the discrimination laws should not apply with equal force
to an employer’s decision regarding a current employee who is denied a renewal of an
employment contract,” Leibowitz v. Cornell Univ., 584 F.3d 487, 501 (2d Cir. 2009), superseded
by regulation as stated in Mihalik v. Credit Agricole Cheuvreux North America, Inc., 715 F.3d
102 (2d Cir. April 26, 2013).
For these reasons, the Court finds that the Plaintiff states a quid pro quo sexual
harassment claim against RSquared NY.
However, with respect to the Plaintiff’s claim of sex discrimination, the Court finds this
claim duplicative of her quid pro quo sexual harassment claim. “[S]exual harassment is a form
of gender discrimination.” Bermudez v. City of New York, 783 F. Supp. 2d 560, 590 (S.D.N.Y.
2011); Bethea v. City of New York, No. 11 CV 2347 (SJ)(JMA), 2014 WL 2616897, at *6
(E.D.N.Y. June 12, 2014)(same).
The Plaintiff also fails to allege the existence of a similarly situated comparator, as
required to establish a prima facie case of disparate treatment sex discrimination in violation of
Title VII and the NYSHRL. Viruet v. Citizen Advice Bureau, No. 01 CIV.4594 (AJP), 2002 WL
1880731 (S.D.N.Y. Aug. 15, 2002). Therefore, the Plaintiff’s independent claims of sex or
gender discrimination are dismissed.
The Title VII and NYHSRL Claims Against the Individual Defendants
Individual defendants may not be held personally liable for alleged violations of Title
VII. See Fanelli v. New York, No. 13-CV-06627 (ADS)(WDW), 2014 WL 4160318, at *5
(E.D.N.Y. Aug. 18, 2014); see e.g., Patterson v. County of Oneida, N.Y., 375 F.3d 206, 226 (2d
Cir. 2004)(“[W]e note that individuals are not subject to liability under Title VII.”)(citations and
internal quotation marks omitted). Therefore, the Court dismisses the Plaintiff’s Title VII claims
against the individual defendants Hirji and Ain “Doe.” See Perry v. State of New York Dep’t of
Labor, 02 CIV. 7566 (LBS), 2003 WL 22327887, at *1 (S.D.N.Y. Oct. 10, 2003)(noting that the
Second Circuit “has unambiguously denied” holding individual supervisors personally liable as
employers for discriminatory conduct under Title VII and therefore dismissing the Plaintiff’s
Title VII claims brought against the individual defendants); see also Schiano, 445 F.3d at 608
(“[A]n individual defendant cannot be held personally liable under Title VII.”); Tomka v. Seiler
Corp., 66 F.3d 1295, 1313–14 (2d Cir. 1995), abrogated on other grounds by Burlington Indus.
v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998)(“[I]ndividual defendants
with supervisory control over a plaintiff may not be held personally liable under Title VII.”).
Relatedly, “an employee may not be individually subject to suit as an employer under
Section 296(1) of the [NYS]HRL ‘if he [or she] is not shown to have any ownership interest or
any power to do more than carry out personnel decisions made by others.’” Lewis v. Triborough
Bridge & Tunnel Auth., 77 F. Supp. 2d 376, 379 (S.D.N.Y. 1999)(quoting Patrowich v. Chem.
Bank, 63 N.Y.2d 541, 542, 483 N.Y.S.2d 659, 473 N.E.2d 11 (1984)). Conversely, “individuals
may be held liable given sufficient supervisory power.” Parra v. City of White Plains, No. 13 CV
5544 (VB), 2014 WL 4468089, at *9 (S.D.N.Y. Sept. 4, 2014)(citations and quotation marks
Further, “an individual cannot be held liable for discriminatory conduct under the
NYSHRL unless that individual ‘actually participate[d] in the conduct giving rise to a
discrimination claim.’” Westbrook v. City Univ. of New York, 591 F. Supp. 2d 207, 224
(E.D.N.Y. 2008)(quoting Tomka, 66 F.3d at 1317); Hirsch v. Columbia University, 293 F. Supp.
2d 372, 377–78 (S.D.N.Y. 2003)(same). That an individual occupies “a high position of
authority is an insufficient basis for the imposition of personal liability,” McKinnon v. Patterson,
568 F.2d 930, 934 (2d Cir. 1977), cert. denied, 434 U.S. 1087, 98 S. Ct. 1282, 55 L. Ed. 2d 792
(1978), and a defendant who occupies a supervisory position cannot be found liable on the basis
of respondeat superior. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994).
Further, a co-worker who “lack[s] the authority to either hire or fire the plaintiff” may
still be held liable as an aider-abettor under NYSHRL § 296(6) if he “actually participates in the
conduct giving rise to a discrimination claim.” Feingold v. New York, 366 F.3d 138, 158 (2d Cir.
2004)(internal quotation marks omitted).
Here, the Plaintiff seeks to hold Hirji and Ain “Doe” individually liable under an “aiding
and abetting” theory of discrimination. The Court finds that the Plaintiff states such a claim as
to Ain “Doe,” but not Hirji who, on these facts, had no connection with the underlying alleged
sexual harassment as to the rehiring.
Based on the foregoing reasons, the Defendants’ motion pursuant to Rule 12(b)(6) to
dismiss the complaint is granted in part and dismissed in part. The motion is granted as to (1) the
Plaintiff’s sex discrimination claim against RSquared NY; (2) the Plaintiff’s Title VII claims
against Hirji and Ain “Doe”; and (3) the Plaintiff’s NYSHRL claim against Hirji. The claims
that may move forward are the quid pro quo sexual harassment claim under Title VII and the
NYSHRL against RSquared NY and the NYSHRL claim against “Ain” Doe. The Clerk of the
Court is respectfully directed to terminate Hirji as a defendant.
Dated: Central Islip, New York
March 3, 2015
Arthur D. Spatt
ARTHUR D. SPATT
United States District Judge
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