Malena et al v. Victoria's Secret Direct, LLC et al
Filing
96
MEMORANDUM AND ORDER granting in part and denying in part #76 Motion for Summary Judgment; granting in part and denying in part #82 Motion for Summary Judgment. For the reasons set forth in this Order, Defendants motions are GRANTED in part and DENIED in part. Specifically, the Corporate Defendants' motion for summary judgment is granted as to the claims for aiding and abetting under the NYSHRL and NYCHRL and for violation of the NYSLL's spread-of-hours provision. The Corporate Defendants' motion is denied in all other respects. O'Malleys motion for summary judgment is granted as to the claims for FMLA retaliation, direct liability for discrimination under the NYSHRL, and violation of the NYSLL's spread-of-hours provision. O'Malleys motion is denied in all other respects. Plaintiffs withdrawn claims for failure to keep accurate records under the FLSA, failure to keep accurate records under the NYSLL, and failure to provide meal breaks under the NYSLL are dismissed. The Clerk of Court is directed to close the motions at docket entry numbers 76 and 82. (Signed by Judge J. Paul Oetken on 8/16/2012) (tro) Modified on 8/17/2012 (tro).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------------X
:
FREDDA MALENA,
:
Plaintiff,
:
:
-against:
:
VICTORIA’S SECRET DIRECT, LLC et al.,
:
Defendants. :
:
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09 Civ. 5849 (JPO)
MEMORANDUM AND
ORDER
J. PAUL OETKEN, District Judge:
Before the Court are two motions for partial summary judgment, one filed by the
Victoria’s Secret entities that are defendants in this case (the “Corporate Defendants”) (Dkt. No.
76) and the other filed by the individual defendant, Ann O’Malley (Dkt. No. 82). (O’Malley and
the Corporate Defendants are together referred to as the “Defendants”). Defendants’ motions
seek partial summary judgment dismissing claims brought by Plaintiff Fredda Malena under the
Fair Labor Standards Act, 29 U.S.C. § 216 et seq. (the “FLSA”); New York State Labor Law,
N.Y. Lab. Law §§ 162(2), 195 et seq. (“NYSLL”); New York state labor regulations, N.Y.
Comp. Codes R. & Regs. tit. 12, § 142-2.4; the Family Medical Leave Act, 29 U.S.C. § 2601 et
seq. (the “FMLA”); the New York State Human Rights Law, N.Y. Exec. Law § 290, et seq.
(“NYSHRL”); and the New York City Human Rights Law, New York City Administrative Code
§ 8-101 et seq. (“NYCHRL”). 1 (Dkt. Nos. 76, 82; see also Complaint, Dkt. No. 1 (“Compl.”).)
For the reasons discussed below, both of Defendants’ motions are granted in part and denied in
part.
1
Plaintiff has also brought additional claims under the FLSA and NYSLL which are not at issue in the instant
motions.
I.
Background
A.
Malena’s Employment
From November 2006 to February 2009, Plaintiff Fredda Malena worked as an executive
assistant to Defendant Ann O’Malley. (Affidavit of Fredda Malena dated February 24, 2012
(“Malena Aff. II”) ¶ 2, appended as Ex. A to Certification of Anthony Carabba, Jr. in Opposition
to Defendants’ Motion for Summary Judgment, Dkt. No. 92 (“Carabba Decl.”).) At the start of
Malena’s employment, the group headed by O’Malley managed “creative services,” including
photography, catalog design, and copy for the Victoria’s Secret catalog and internet site.
(Transcript of September 9, 2010 Deposition of Ann O’Malley (“O’Malley Tr.”) at 19-20, 24-25,
361-62, appended as Ex. C to Carabba Decl. and as Ex. 4 to Declaration of Michael C. Griffaton
in Support of Defendants’ Motion for Summary Judgment, Dkt. No. 78 (“Griffaton Decl. I”).)
O’Malley and her group, including Malena, first worked within Victoria’s Secret Direct,
LLC (“VSD”), 2 but were moved in about October 2007 to Victoria’s Secret Stores Brand
Management, Inc. (“SBM”) to oversee creative services at both VSD and SBM. (Declaration of
Pia Ferrario, Dkt. No. 79 (“Ferrario Decl. I”), ¶¶ 7-9; Declaration of Shannon Foley, Dkt. No. 80
(“Foley Decl. I”), ¶¶ 8-10.)
Malena’s work responsibilities included: opening and sorting mail, organizing files,
maintaining O’Malley’s calendar, assisting with meeting agendas and materials, and providing
various personal assistance to O’Malley, such as watering plants or meeting service providers at
O’Malley’s apartment. (Position Profile, appended as Ex. H to Carabba Decl.; Affidavit of
Fredda Malena dated April 7, 2010 (“Malena Aff. I”) ¶ 6, appended as Ex. GG to Carabba Decl.)
2
In fact, Malena worked at a subsidiary of VSD, Victoria’s Secret Direct Media, Inc. (now known as Limited
Brands Direct Media Production, Inc.), but, for simplicity, this opinion will follow Defendants’ practice of referring
to all entities within VSD as VSD.
2
O’Malley praised Malena’s performance in various notes to Malena. (See Carabba Decl.,
Exs. I, J, K, L, M, N, O, P, Q.) Malena also received an “Impact Award,” recognizing how she
had “touched everyone with her amazing, can-do attitude, her enthusiastic creativity, her
boisterous spirit and her constant drive to help the company flourish” and how she “consistently
[went] above and beyond the call of duty by supporting not only [O’Malley] but also
[O’Malley’s] direct reports and [was] quick to help anyone and everyone on the creative team in
any capacity possible.” (See Impact Award, appended as Ex. R to Carabba Decl.; Impact Award
remarks, appended as Ex. S to Carabba Decl.) Malena’s 2008 performance review shows that
she received an overall performance rating of 2, the second-highest of five ratings, about which
the review form states, “Few associates fall into this category. This person always accomplishes
results well beyond what is expected.” (Performance Review Form dated April 16, 2008 at
cover, 5, appended as Ex. T to Carabba Decl.)
B.
Malena’s Pregnancy and Subsequent Workplace Difficulties
Malena became pregnant and took maternity leave, which began in late July 2008.
(Malena Aff. II ¶ 10; Transcript of April 16, 2010 Deposition of Beth Fallacaro (“Fallacaro Tr.”),
appended as Ex. D to Carabba Decl. and as Ex. 5 to Griffaton Decl. I, at 117; FMLA Approval
Letter, appended as Ex. II to Carabba Decl.) Malena testified that, shortly after she announced
her pregnancy, a “coldness develop[ed]” in her relationship with O’Malley. (Transcript of June
29, 2010 Deposition of Fredda Malena (“Malena Tr.”), appended as Ex. B to Carabba Decl. and
as Ex. 3 to Griffaton Decl. I, at 241.)
Upon Malena’s return from maternity leave, O’Malley began criticizing her for issues
that had never been problematic before her maternity leave, including Malena’s clothing, her
purportedly excessive friendliness, and her email etiquette. (See Malena Tr. 251, 261-62;
3
Malena Aff. II ¶¶ 5-8, 13; O’Malley Tr. at 298; January 16, 2009 Email from Fredda Malena,
appended as Ex. W to Carabba Decl.; Undated Email from Fredda Malena to Ann O’Malley,
appended as Ex. V to Carabba Decl.) Malena testified that O’Malley never mentioned Malena’s
pregnancy in Malena’s presence (Malena Aff. II ¶ 4; Malena Tr. at 243), but prohibited Malena
from posting pictures of her children and coworkers’ children in her cubicle as she had done
before her maternity leave (Malena Aff. II ¶¶ 8, 13).
O’Malley met with the human resources (“HR”) manager assigned to her group, Beth
Fallacaro, on January 15, 2008. O’Malley told Fallacaro that she was concerned about Malena’s
performance and “concerned that a second child may keep her out of the office.” (Fallacaro Tr.
at 226.) Fallacaro’s hand-written notes from the meeting include these bullet points: “Fredda is
not ‘on’ all the time”; “her kid is always sick & taking time off,” followed by “not chronic
illness” and “now a second child”; “need someone 24/7 (weekends)”; “not getting support she
needs from Fredda”; “finding Jen Pincus to be more supportive and better fit w/ what Ann
needs”; “hormonal? not focused”; “can Fredda keep up w/ pace.” (Fallacaro Notes dated
January 15, 2008, appended as Ex. EE to Carabba Decl.; see also Fallacaro Tr. at 221.) In her
deposition, O’Malley confirmed that she had been concerned about Malena’s absences,
purportedly due to her child’s illnesses. (O’Malley Tr. at 277-78.)
O’Malley also testified that there had been discussions about the possibility of replacing
Malena with Jennifer Pincus, another executive assistant in O’Malley’s group, though O’Malley
could not recall the timing of these discussions. (O’Malley Tr. 346-47.) A second meeting
between O’Malley and Fallacaro took place on September 8, 2008; Fallacaro’s notes from this
meeting mention a “possible move” or “switch” of Malena and Pincus. (Fallacaro Notes dated
September 8, 2008, appended as Ex. JJ to Carabba Decl.) Fallacaro made notes two days later
4
about a discussion with her supervisor, Debra Bierman, about O’Malley and a “confidential
search for admin but not too far in advance.” (Fallacaro Notes dated September 10, 2008,
appended as Ex. KK to Carabba Decl.) O’Malley later testified, “There was no confidential
search, just so you know. There was no confidential search.” (O’Malley Tr. at 346.)
The evidence shows that Malena, too, met with Fallacaro in HR and raised concerns
about O’Malley’s unfriendly behavior towards her—once in early February 2009 and once
“[a]pproximately two days before [Malena] was terminated” in late February 2009. (Malena
Aff. II ¶¶ 15-16.) However, in these meetings, Malena did not attribute any of O’Malley’s
conduct to dissatisfaction with Malena’s pregnancy or maternity leave. (Malena Tr. at 308
(“There was no way I was going to bring up discrimination to Beth Fallacaro.”).)
C.
Victoria’s Secret Reduction-in-Force
In February 2009, SBM and VSD both undertook a reduction-in-force (“RIF”). (Ferrario
Decl. I ¶ 12; Foley Decl. I ¶ 13.) As part of the associated restructuring, numerous employees
were reassigned to different jobs. (Ferrario Decl. I ¶ 13; Foley Decl. I ¶ 14.) O’Malley’s group,
which had been at SBM, was returned to VSD. (Ferrario Decl. I ¶ 14-15; Foley Decl. I ¶ 15-16.)
Then, thirty-two VSD employees, including Malena, were terminated in the RIF. (Ferrario Decl.
I ¶ 13; Foley Decl. I ¶ 14.)
Defendants have adduced evidence that all decisions about terminations in the VSD RIF
were made by VSD’s CEO Pia Ferrario and VSD’s Senior Vice President of Human Resources
Sheena Foley. (Ferrario Decl. I ¶ 16; Foley Decl. I ¶ 17.) Ferrario and Foley had been given a
dollar figure by which they were to reduce VSD’s costs. (Ferrario Decl. I ¶ 17; Foley Decl. I ¶
18.) The two held discussions with various managers, including O’Malley, regarding which
employees were critical to the Victoria’s Secret business. (Ferrario Decl. I ¶ 19; Foley Decl. I ¶
5
20.) However, Ferrario and Foley insist that they did not ask O’Malley about the people in her
own group, including Malena, because O’Malley did not then know that she would be demoted
to her previous position at VSD, that her group would be returned to VSD, or that her group
would be at all affected by the restructuring. (Ferrario Decl. I ¶¶ 19-21; Foley Decl. I ¶¶ 21-22.)
They stress that O’Malley “was not . . . involved in, asked about, or a decision maker with regard
to her own team.” (Foley Decl. I ¶ 22; see also Ferrario Decl. I ¶ 21; O’Malley Tr. at 364-85.)
The RIF and its consequences were announced to VSD employees on February 25 and 26, 2009;
only days before, SBM leadership had informed O’Malley that she would be returned to VSD.
(Ferrario Decl. I ¶ 15; Foley Decl. I ¶ 16.)
In materially identical language, Ferrario and Foley explain their decision to terminate
Malena this way:
Before the 2009 RIF, Lynette Cortez’s role was Senior Vice President for
Creative Services of VSD, reporting directly to Ms. Ferrario (the CEO). At that
time, Jennifer Pincus was employed as Cortez’s administrative assistant; Pincus
earned $55,000 annually. . . . After the restructuring, Cortez was demoted to a
position that would instead report to O’Malley. Due to Cortez’s demotion, Cortez
was no longer senior enough to have an assistant (Pincus). . . . This meant that
Creative Services for VSD had two assistants—Malena and Pincus—but only one
open assistant position, the one reporting to O’Malley. . . . Ms. Ferrario and [Ms.
Foley] selected Pincus as O’Malley’s assistant for O’Malley’s new, reduced role,
and [they] identified Malena to be terminated as part of the RIF, because
Malena’s salary was $75,000 and Pincus’ salary was $55,000.
(Foley Decl. I ¶¶ 23-26; see also Ferrario Decl. I ¶¶ 22-25.) Foley and Ferrario also averred that,
“[i]n the year prior to the RIF, 17 associates from VSD took FMLA leave for reasons related to
pregnancy, birth, or adoption; only two of those 17 associates (including Malena) were
terminated as part of the RIF” and that “to the best of [Ferrario and Foley’s] knowledge, none of
the other 31 individuals at VSD who lost their jobs in the 2009 RIF were pregnant.” (Foley
Decl. I ¶¶ 29-30; Ferrario Decl. I ¶ 27.)
6
D.
O’Malley’s Authority and Role in Malena’s Termination
According to evidence adduced by Defendants and not refuted by Plaintiff, O’Malley did
not have authority to hire or fire Plaintiff; did not maintain employment records; did not classify
employees as being exempt or non-exempt from federal or state overtime pay requirements; did
not have sole authority to set her associates’ salary, working hours, or schedules; and did not
accept, process, or approve associates’ requests for FMLA leave. (Foley Decl. I ¶¶ 32-36.)
Plaintiff’s Interrogatory Number 5 asked Defendants to “[i]dentify all persons who have
knowledge of any facts and/or circumstances relating to the cessation of Plaintiff’s employment
with Defendants.” (Defendants’ Responses to Plaintiff’s First Set of Interrogatories on
Individual Claims, appended as Ex. BB to Carabba Decl. (“Interrogatory Responses I”), at 6.)
While objecting that the “request exceed[ed] the parameters of permissible discovery under
Local Rule 33.3(a),” Defendants responded:
Plaintiff
Ann O’Malley
Beth Fallacaro
Debra Bierman
Sheena Foley
Pia Ferrario
(Id.; see also Verification of Ann O’Malley, appended as Ex. DD to Carabba Decl.)
Plaintiff’s Interrogatory Number 6 asked Defendants to “[i]dentify all persons involved in
the decision to reassign some, but not all of the employees in Plaintiff’s department.”
(Interrogatory Responses I at 6.) Defendants responded:
Ann O’Malley
Sheena Foley
Pia Ferrario
(Id. at 7.) With the filing of their reply papers, Defendants amended their answer to
Interrogatory Number 6 to remove O’Malley’s name from the list given above and to explain
7
that “Ann O’Malley provided some input into the reorganization process regarding certain
associates of Victoria’s Secret Direct, but not regarding the four-person department” of
O’Malley, Malena, and two others. (Defendants’ Amended Response to Plaintiff’s First Set of
Interrogatories on Individual Claims (“Amended Interrogatory Response”), appended as Ex. 6 to
Reply Declaration of Michael G. Long, Dkt. No 95.)
II.
Legal Standard for Summary Judgment
Summary judgment is appropriate where “the movant shows that 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). The “mere existence of some alleged factual dispute between the parties will
not defeat an otherwise properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.” Scott v. Harris, 550 U.S. 372, 380 (2007)
(internal quotation marks and citation omitted). “A fact is ‘material’ when it might affect the
outcome of the suit under governing law,” and “[a]n issue of fact is ‘genuine’ if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” McCarthy v. Dun &
Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007) (internal quotation marks and citation
omitted).
When determining whether a genuine dispute of material fact exists, a court must view
the facts in the light most favorable to the non-moving party and draw all reasonable inferences
in that party’s favor. See Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d
Cir. 2010).
8
III.
Discussion
This discussion addresses in turn (1) Plaintiff’s claims against the Corporate Defendants
for discrimination and retaliation; (2) her claims against O’Malley for discrimination and
retaliation; (3) her claims for aiding and abetting pregnancy discrimination; (4) her spread-ofhours claim; and (5) certain claims that Plaintiff has withdrawn in the face of Defendants’
motions.
A.
Discrimination and Retaliation Claims against the Corporate Defendants
Against the Corporate Defendants, Malena asserts claims for pregnancy discrimination
under the NYSHRL and NYCHRL and for retaliation under the FMLA and NYSHRL and
NYCHRL.
1.
Pregnancy Discrimination
Though neither the NYSHRL nor the NYCHRL explicitly names pregnancy as a type of
actionable discrimination, courts have deemed pregnancy discrimination actionable under both
laws. See Elaine W. v. Joint Disease N. Gen. Hosp., Inc., 81 N.Y.2d 211, 216, 613 N.E.2d 523
(1993) (explaining that, under the NYSHRL, “distinctions based solely upon a woman’s
pregnant condition constitute sexual discrimination”); Caralp v. Credit Agricole Cheuvreux
North America, Inc., 2009 N.Y. Misc. LEXIS 4575, at *8, 2009 N.Y. Slip Op 30174 [U] (N.Y.
Sup. Ct. Jan. 26, 2009) (stating that “without question,” under both NYSHRL and NYCHRL,
“Plaintiff is female and was pregnant, and so is and was a member of a protected class”);
Wenping Tu v. Loan Price Corp., 21 Misc 3d 1104[A], at *6, 873 N.Y.S.2d 238, 2008 N.Y.
Misc. LEXIS 5606 (N.Y. Sup. Ct., September 23, 2008) (recognizing an NYCHRL claim for
discriminatory hostile environment because of pregnancy, stating that the City Law “was
designed to be more protective than its State and Federal counterparts”).
9
Pregnancy discrimination claims under the NYSHRL and NYCHRL are analyzed using
the three-step burden-shifting framework established in McDonnell Douglas v. Green, 411 U.S.
792 (1973). See Lambert v. McCann Erickson, 543 F. Supp. 2d 265, 277 (S.D.N.Y. 2008) (citing
Weinstock v. Columbia University, 224 F.3d 33, 42 n.1 (2d Cir. 2000); Kerzer v. Kingly Mfg.,
156 F.3d 396, 400-01 (2d Cir.1998)); Kerman-Mastour v. Fin. Indus. Regulatory Auth., Inc., 814
F. Supp. 2d 355, 366 (S.D.N.Y. 2011) (explaining that, though the NYCHRL has broader scope
than the NYSHRL and federal law, “[i]n analyzing whether a plaintiff has raised a triable issue
of fact as to whether her termination was motivated by discriminatory animus under the
NYCHRL, the courts have continued to employ the familiar burden-shifting analysis of
McDonnell Douglas . . .”).
Under the McDonnell Douglas framework,
plaintiff must first establish a prima facie case of discrimination. Plaintiff may do
so by showing that: (1) she is a member of a protected class; (2) she satisfactorily
performed the duties required by the position; (3) she was discharged; and (4) her
position remained open and was ultimately filled by a non-pregnant employee. A
plaintiff may also establish the fourth element by demonstrating that the discharge
occurred in circumstances giving rise to an inference of unlawful discrimination.
A plaintiff’s burden to establish a prima facie case of discrimination is de
minimis.
Lambert, 543 F. Supp. 2d at 277 (internal quotation marks and citation omitted). “Plaintiff must
also be able to point to some admissible evidence from which a rational jury could infer that the
employer knew that the plaintiff was pregnant.” Id. “Once a plaintiff meets this initial burden,
the burden then shifts to the defendant to offer a legitimate nondiscriminatory reason for the
termination. If defendant does so, the burden returns to the plaintiff to show that the real reason
for plaintiff’s termination was [her pregnancy].” Kerman-Mastour, 814 F. Supp. 2d at 366. This
final burden “may often be carried by reliance on the evidence comprising the prima facie case,
without more.” Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995).
10
“To avoid summary judgment in an employment discrimination case, the plaintiff is not
required to show that the employer’s proffered reasons were false or played no role in the
employment decision, but only that they were not the only reasons and that the prohibited factor
was at least one of the ‘motivating’ factors.” Holcomb v. Iona College, 521 F.3d 130, 138 (2d
Cir. 2008) (citing Cronin, 46 F.3d at 203; Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 78 (2d
Cir. 2001). 3 The employer “may still raise the defense . . . that it would have [terminated
Plaintiff] regardless of her [pregnancy]. But the validity of this defense is ordinarily for the jury
to decide at trial rather than for the court to determine on a motion for summary judgment.”
Holtz, 258 F.3d at 79 (citation omitted). Indeed, the Second Circuit has “repeatedly expressed
the need for caution about granting summary judgment to an employer in a discrimination case
where . . . the merits turn on a dispute as to the employer’s intent.” Holcomb, 521 F.3d at 137.
It is well settled in the Second Circuit that,
[b]ecause writings directly supporting a claim of intentional discrimination are
rarely, if ever, found among an employer’s corporate papers, affidavits and
depositions must be carefully scrutinized for circumstantial proof which, if
believed, would show discrimination. However, even in such cases, a [p]laintiff
must provide more than conclusory allegations of discrimination to defeat a
motion for summary judgment, and show more than some metaphysical doubt as
to the material facts.
Britt v. Merrill Lynch & Co., 2011 U.S. Dist. LEXIS 96881, at *20-21 (S.D.N.Y. Aug.
26, 2011) (citing, inter alia, Gorzynski v. Jetblue Airways Corp., 596 F.3d 93, 101 (2d
Cir.2010)) (internal quotation marks and additional citations omitted).
3
This rule is not inconsistent with St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993), which explains that “a
reason cannot be proved to be a pretext for discrimination unless it is shown both that the reason was false, and that
discrimination was the real reason.” Id. at 515 (internal quotation marks omitted). St. Mary’s governs where a
plaintiff seeks to show pretext, but “a plaintiff who . . . claims that the employer acted with mixed motives is not
required to prove that the employer’s stated reason was a pretext.” Holcomb, 521 F.3d at 137. Pretext is but one
way to raise a genuine issue of material fact whether the adverse action was motivated by discriminatory intent. The
question in St. Mary’s was whether evidence that a proffered nondiscriminatory reason was false—in the absence of
evidence of discriminatory intent—could be sufficient to reestablish a presumption of unlawful discrimination. It
cannot. St. Mary’s, 509 U.S. 502. But evidence that discriminatory intent was one factor motivating the employer’s
decision can, by itself, make summary judgment for the employer inappropriate.
11
a.
Plaintiff’s Prima Facie Case
Defendants “assum[e], for the purposes of summary judgment only, that Plaintiff could
establish a prima facie case of pregnancy discrimination.” (Defs.’ Br., Dkt. No. 77, at 11.)
Plaintiff has adduced evidence that she was pregnant and that her employer knew that she was
pregnant when it approved her FMLA maternity leave. She has shown that she received an
award and various forms of praise for her job performance before her pregnancy. She has shown
that she was terminated, and she has shown that some of the circumstances surrounding her
termination—O’Malley’s expression of concern to HR about Plaintiff’s pregnancy and
hormones—give rise to an inference of unlawful discrimination. Plaintiff has met the de minimis
burden of establishing a prima facie case of pregnancy discrimination, creating a presumption of
discrimination.
b.
Legitimate Nondiscriminatory Reason
Plaintiff concedes that Defendants have proffered a legitimate, nondiscriminatory reason
for terminating Plaintiff’s employment: the company’s cost-saving reduction-in-force. (Pl.’s Br.,
Dkt. No. 90, at 14.) The RIF was a legitimate, nondiscriminatory reason for Plaintiff’s
termination and is sufficient to overcome the presumption of discrimination created by Plaintiff’s
prima facie case. See, e.g., Sabatino v. Flik Int’l Corp., 286 F. Supp. 2d 327, 334 (S.D.N.Y.
2003) (agreeing with the “many courts [that] have found that a reduction in workforce for
financial reasons is sufficient to fulfill a defendants’ burden of production” under the McDonnell
Douglas framework).
c.
Discriminatory Motivation for Termination
Though the presumption of discrimination has dropped away, Plaintiff “may still prevail
by showing, without the benefit of the presumption, that the employer’s determination was in
12
fact the result of . . . discrimination.” Holcomb, 521 F.3d at 138. Defendants argue that Plaintiff
cannot meet this burden because there is no evidence imputing O’Malley’s potentially
discriminatory intent to Ferrario and Foley, who made the decision to terminate Plaintiff. It is
true that no evidence indicates that Ferrario or Foley knowingly acted with any impermissible
intent. The question then arises whether the Corporate Defendants are entitled to summary
judgment or whether Ferrario and Foley’s termination of Plaintiff, even if executed with an
innocent state of mind, might nonetheless have been tainted by animus attributable to O’Malley.
The Supreme Court recently “consider[ed] the circumstances under which an employer
may be held liable for employment discrimination based on the discriminatory animus of an
employee who influenced, but did not make, the ultimate employment decision.” Staub v.
Proctor Hosp., 131 S. Ct. 1186, 1189 (2011). The Court concluded that, “if a supervisor
performs an act motivated by [discriminatory] animus that is intended by the supervisor to cause
an adverse employment action, and if that act is a proximate cause of the ultimate employment
action, then the employer is liable” under applicable nondiscrimination law. 4 Id. at 1194.
“Proximate cause requires only some direct relation between the injury asserted and the injurious
conduct alleged, and excludes only those link[s] that are too remote, purely contingent, or
indirect.” Id. at 1192 (internal quotation marks and citation omitted). Further, “it is common for
injuries to have multiple proximate causes.” Id. (citation omitted).
Here, Plaintiff has adduced evidence that, months prior to her termination, agents of the
Corporate Defendants discussed a “confidential search for [an] admin” to replace Plaintiff.
(Fallacaro Notes dated September 10, 2008.) She has shown that O’Malley met with an HR
official on two occasions to express “concerns” about Malena’s pregnancy, hormones, and
4
Though Staub concerned the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C.
§ 4301 et seq., Plaintiff and at least the Corporate Defendants agree that the case applies here. (See Pl.’s Br. at 2021; Defs.’ Reply Br., Dkt. No. 94, at 2-3 n.1.)
13
parental obligations. (Id.; Fallacaro Notes dated January 15, 2008; Fallacaro Notes dated
September 8, 2008; Fallacaro Tr. at 221.)
Ferrario and Foley have averred that O’Malley “was not . . . involved in, asked about, or
a decision maker with regard to” Plaintiff’s termination. (Foley Decl. I ¶ 22; Ferrario Decl. I ¶
21; see also O’Malley Tr. at 364-85.) But Defendants have not adduced evidence that, in
deciding to terminate Malena, Ferrario and Foley did not consider (or were unaware of)
O’Malley’s dissatisfaction with Malena and/or a confidential HR plan to replace Plaintiff.
Defendants argue that Plaintiff is relying only on her own speculation that Ferrario and
Foley were influenced by O’Malley’s potential bias against Malena. And that argument may
well be persuasive at trial. For now, however, no evidence shows that O’Malley’s potential bias
did not influence the decision to terminate Malena or that it did. Given such a gap in the
evidence, the Court must make all reasonable inferences in favor of the non-moving party—here,
the plaintiff. It is not unreasonable to infer that Ferrario and especially HR chief Foley would
have learned about O’Malley’s dissatisfaction with Plaintiff, which O’Malley reported to HR.
Malena may have an uphill battle at trial to show that O’Malley’s reports to HR, “motivated by
[discriminatory] animus” and “intended . . . to cause an adverse employment action,” were “a
proximate cause” of her termination. Staub, 131 S. Ct. at 1194. But Defendants have not
adduced evidence that O’Malley’s potentially animus-motivated actions were not a proximate
cause for the termination—only that financial concerns were. Thus, the evidence currently
before the Court does not entitle the Corporate Defendants to summary judgment on Plaintiff’s
discrimination claims.
14
2.
FMLA Retaliation
Malena also claims that, in violation of the FMLA, the Corporate Defendants retaliated
against her for taking maternity leave. FMLA retaliation claims are also analyzed using the
McDonnell Douglas burden-shifting test. Potenza v. City of New York, 365 F.3d 165, 167 (2d
Cir. 2004).
a.
Prima Facie Case
To make out a prima facie case of retaliation under the FMLA, a plaintiff must establish
that: (1) she exercised rights protected under the FMLA; (2) she was qualified for her position;
(3) she suffered an adverse employment action; and (4) the adverse employment action occurred
under circumstances giving rise to an inference of retaliatory intent. Id. at 168.
Plaintiff has shown that she took maternity leave pursuant to the FMLA. As discussed
above vis-à-vis her pregnancy discrimination claims, she has shown that she was qualified for
her position and that she suffered an adverse employment action in the form of her termination.
And Malena has adduced evidence that O’Malley complained to HR that Malena took off too
much time to care for her children and was therefore unfit to be O’Malley’s assistant, as well as
that O’Malley treated Malena in an unfriendly way after her return from FMLA leave. A
reasonable jury could find that O’Malley’s state of mind included dissatisfaction with Malena’s
departure from her job to take maternity leave under the FMLA. These are circumstances which
give rise to an inference of retaliatory intent on O’Malley’s part, which, as discussed above, may
be attributable to the Corporate Defendants. Thus, Plaintiff has met her de minimis burden of
stating a prima facie case.
15
b.
Legitimate Nondiscriminatory Reason
As discussed above vis-à-vis Plaintiff’s pregnancy discrimination claims, the Corporate
Defendants have stated a legitimate nondiscriminatory basis on which they might have
terminated Malena: the February 2009 reduction-in-force at Victoria’s Secret.
c.
Retaliatory Motivation for Termination
As also discussed above, Defendants have adduced evidence that the decision-makers in
Plaintiff’s termination considered financial reasons for the termination. However, no evidence
shows whether or not those decision-makers also considered O’Malley’s complaints about
Plaintiff, which may have been motivated by discriminatory or retaliatory intent. Just as with
Plaintiff’s pregnancy discrimination claims, the Corporate Defendants have failed to show that
there is no genuine issue of material fact as to the motivations that were proximate causes of
Plaintiff’s termination. Accordingly, the Corporate Defendants are not entitled to summary
judgment on Plaintiff’s FMLA retaliation claim.
3.
NYSHRL and NYCHRL Retaliation
Plaintiff additionally alleges that the Corporate Defendants “discriminated against
Plaintiff in retaliation for, and on account of, her opposing discrimination and asserting her rights
under the anti-discrimination laws with respect to compensation, terms, conditions and privileges
of employment in violation of the [NYSHRL] and [NYCHRL].” (Compl. ¶ 92.)
“Retaliation claims under . . . the State and City Human Rights Laws are analyzed under
the same ‘burden-shifting’ framework set forth by the Supreme Court in McDonnell Douglas
Corp. v. Green.” Apionishev v. Columbia Univ. in N.Y., 2012 U.S. Dist. LEXIS 8160, at *27
(S.D.N.Y. Jan. 23, 2012) (citing Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Cir. 2010)).
16
The NYSHRL provides that “[i]t shall be an unlawful discriminatory practice for any
person engaged in any activity to which this section applies to retaliate or discriminate against
any person because he or she has opposed any practices forbidden under this article.” N.Y.
Exec. Law § 296(7). Here, the relevant “practice forbidden” is “[f]or an employer . . . because of
an individual’s [pregnancy] . . . to discriminate against such individual in compensation or in
terms, conditions or privileges of employment.” N.Y. Exec. Law § 296(1)(a).
To establish a prima facie case of retaliation under the NYSHRL, as under federal
employment anti-discrimination law, a plaintiff-employee must show that (1) she engaged in
protected activity; (2) the employer was aware of this activity; (3) the employer took adverse
action against the employee; and (4) a causal connection exists between the protected activity
and the adverse action. Dumay v. City of New York, 2011 U.S. Dist. LEXIS 118932, at *24-25
(S.D.N.Y. Oct. 13, 2011). “‘[G]eneral corporate knowledge that the plaintiff has engaged in
protected activity’ is sufficient.” Holland v. City of New York, DoITT, 2011 U.S. Dist. LEXIS
144941, at *25-26 (S.D.N.Y. Dec. 15, 2011) (quoting Patane v. Clark, 508 F.3d 106, 115 (2d
Cir. 2007)). 5
As to the NYCHRL, the traditional view held that “the Federal civil rights statute
proscribing retaliation (42 USC § 2000e-3 [a]) and Administrative Code § 8-107 (7) are virtually
identical.” Pace Univ. v. New York City Comm’n on Human Rights, 200 A.D.2d 173, 182, 611
N.Y.S.2d 835 (N.Y. App. Div. 1994), rev’d on other grounds, 85 N.Y.2d 125 (1995). However,
5
General corporate knowledge is insufficient, however, if there is an “absence of any evidence of causation.” Britt
v. Merrill Lynch & Co., 2011 U.S. Dist. LEXIS 96881, at *48-49 (S.D.N.Y. Aug. 26, 2011); see also Gordon v. New
York City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000) (“The lack of knowledge on the part of particular
individual agents is admissible as some evidence of a lack of a causal connection, countering plaintiff’s
circumstantial evidence of proximity or disparate treatment.”); Murray v. Visiting Nurse Servs. of N.Y., 528 F. Supp.
2d 257, 271 (S.D.N.Y. 2007) (“[D]istrict courts have consistently held that, with regard to the causation prong of the
prima facie standard, absent any evidence to support an inference that the decisionmakers knew of plaintiff’s
complaints, plaintiff cannot rely on circumstantial evidence of knowledge as evidence of causation.”).
17
the Local Civil Rights Restoration Act of 2005, N.Y.C. Local Law No. 85 (2005) (the
“Restoration Act”) amended the NYCHRL to confirm the legislative intent to eliminate
“parallelism” between the NYCHRL and the federal and state anti-discrimination laws:
The provisions of this . . . title shall be construed liberally for the accomplishment
of the uniquely broad and remedial purposes thereof, regardless of whether
federal or New York State civil and human rights laws, including those laws with
provisions comparably-worded to provisions of this title, have been so construed.
Restoration Act § 7. Thus, NYCHRL claims must be “reviewed independently from and ‘more
liberally’ than their federal and state counterparts.” Loeffler v. Staten Island Univ. Hosp., 582
F.3d 268, 278 (2d. Cir. 2009) (citing Williams v. New York City Hous. Auth., 61 A.D.3d 62, 6669, 872 N.Y.S.2d 27 (N.Y. App. Div. 2009)).
The text of the NYCHRL provides that “[i]t shall be an unlawful discriminatory practice
for any person engaged in any activity to which this chapter applies to retaliate or discriminate in
any manner against any person because such person has (i) opposed any practice forbidden under
this chapter.” NYCHRL § 8-107(7). “The [NY]CHRL is slightly more solicitous of retaliation
claims than federal and state law because, rather than requiring a plaintiff to show an ‘adverse
employment action,’ it only requires him to show that something happened that was ‘reasonably
likely to deter a person from engaging in protected activity.’” Rozenfeld v. Dep’t of Design &
Constr., 2012 U.S. Dist. LEXIS 97030, at *37 (E.D.N.Y. July 11, 2012) (citation omitted).
Otherwise, a prima facie case of retaliation faces the same requirements under the NYCHRL as
under the NYSHRL. See id.
a.
Prima Facie Case
As discussed above, it is not in dispute that Plaintiff’s termination was an adverse
employment action. To state a prima facie case of retaliation under the NYSHRL and
NYCHRL, Plaintiff must adduce evidence that she engaged in protected activity by voicing
18
concerns to Fallacaro in HR about O’Malley’s negative treatment of her, that her employer was
aware of this activity, and that there was a causal connection between the protected activity and
her termination.
Malena’s affidavit states that she twice raised concerns about O’Malley’s behavior with
Fallacaro, once in early February 2009 and once “[a]pproximately two days before [she] was
terminated” in late 2009. (Malena Aff. II ¶¶ 15-16.) However, in these visits, Malena never
characterized any of O’Malley’s behavior as discriminatory or related to Malena’s pregnancy or
maternity leave. (Malena Tr. at 308 (“There was no way I was going to bring up discrimination
to Beth Fallacaro.”).)
It is true that “[n]ot every complaint garners its author protection under [antidiscrimination laws]” and that, generally, “[w]hile no ‘magic words’ are required, the complaint
must in some way allege unlawful discrimination, not just frustrated ambition.” Broderick v.
Donaldson, 437 F.3d 1226, 1232 (D.C. Cir. 2006) (citation omitted); see also Miller v. Am.
Family Mut. Ins. Co., 203 F.3d 997, 1008 (7th Cir. 2000) (“An employee can honestly believe
she is the object of discrimination, but if she never mentions it, a claim of retaliation is not
implicated, for an employer cannot retaliate when it is unaware of any complaints.”). 6
However, there are times when even inaction can constitute protected activity for
retaliation purposes under federal anti-discrimination law. See, e.g., Crawford v. Metro. Gov’t of
Nashville & Davidson County, Tenn., 555 U.S. 271, 277 (2009) (stating that, with regard to Title
6
See also Ramos v. City of New York, 1997 U.S. Dist. LEXIS 10538, at *7 (S.D.N.Y. July 21, 1997) (“While there
are no magic words that must be used when complaining about a supervisor, in order to be protected activity the
complainant must put the employer on notice that the complainant believes that discrimination is occurring. . . . To
be actionable, the unfair treatment must be due to one’s membership in a protected class and the complaint must
make that point sufficiently clear.”); Long v. Russell County Comm’n, 2010 U.S. Dist. LEXIS 136618, at *49-51
(M.D. Ala. Dec. 27, 2010) (“[T]o engage in protected activity, the employee must still, ‘at the very least,
communicate her belief that discrimination is occurring to the employer,’ and cannot rely on the employer to ‘infer
that discrimination has occurred.’” . . . [A]n employer is put on notice of discrimination by the content of the
discussion, not by unspoken motivations.” (quoting Demers v. Adams Homes of Nw. Florida, Inc., 321 F. App’x.
847, 852 (11th Cir. 2009)).
19
VII’s prohibition against retaliation for “opposition” to discrimination, “we would call it
‘opposition’ if an employee took a stand against an employer’s discriminatory practices not by
‘instigating’ action, but by standing pat, say, by refusing to follow a supervisor’s order to fire a
junior worker for discriminatory reasons”); McDonnell v. Cisneros, 84 F.3d 256, 262 (7th Cir.
1996) (concluding that Title VII prohibits retaliation “where the employer retaliate[d] against an
employee for having failed to prevent the filing of a complaint” by another).
Here, though Plaintiff did not mention discrimination in her HR complaints, her
complaints about O’Malley’s treatment of her were lodged with the very HR official with whom
O’Malley had raised concerns about Plaintiff’s pregnancy, parental obligations, hormones, and
professional abilities. Though Malena did not voice her suspicions that discriminatory intent lay
behind O’Malley’s negative treatment of Malena, there is evidence that Fallacaro already knew
that O’Malley may have harbored discriminatory intent toward Plaintiff. Thus, the evidence
permits a finding that, in voicing concerns to Fallacaro, Plaintiff “opposed . . . practices
forbidden under [the NYSHRL and NYCHRL],” i.e., what may have been pregnancy-motivated
discrimination by O’Malley “in terms, conditions or privileges of employment.” N.Y. Exec.
Law §§ 296(1), (7); NYCHRL § 8-107(1), (7). And since “general corporate knowledge that the
plaintiff has engaged in protected activity is sufficient,” Holland, 2011 U.S. Dist. LEXIS
144941, at *25-26, evidence of Fallacaro’s existing knowledge of O’Malley’s state of mind
constitutes evidence that the Corporate Defendants knew that Plaintiff had opposed negative
treatment which, they knew, may have been motivated by discriminatory animus. Plaintiff has
thus made a sufficient showing at this stage that she engaged in protected activity and that the
Corporate Defendants were aware of that activity.
20
Plaintiff may show that retaliation for her protected activity caused her termination
“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 animus directed against the plaintiff by the defendant.” Gordon v. N.Y. City Bd. of
Ed., 232 F.3d 111, 117 (2d Cir. 2000) (citing Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033,
1039 (2d Cir. 1993)). Here, Plaintiff’s visits to Fallacaro in HR occurred approximately three
weeks before her termination and two days before her termination. The proximity of these visits
and the adverse employment action create an inference of a causal relationship between them.
See Gorzynski, 596 F.3d at 110 (“Though this Court has not drawn a bright line defining, for the
purposes of a prima facie case, the outer limits beyond which a temporal relationship is too
attenuated to establish causation, we have previously held that five months is not too long to find
the causal relationship.” (citation omitted)).
Accordingly, Plaintiff has stated a prima facie case of retaliation under the NYSHRL and
the NYCHRL.
b.
Legitimate Nondiscriminatory Reason
As discussed above vis-à-vis Plaintiff’s claims of pregnancy discrimination and FMLA
retaliation, the Corporate Defendants have stated a legitimate nondiscriminatory basis on which
they might have terminated Malena: the February 2009 reduction-in-force at Victoria’s Secret.
c.
Retaliatory Motivation for Termination
As also discussed above, Defendants have adduced evidence that the decision-makers in
Plaintiff’s termination considered financial reasons for the termination. However, no evidence
shows whether or not those decision-makers also considered O’Malley’s complaints about
21
Plaintiff, which may have been motivated by discriminatory or retaliatory intent; nor does any
evidence show whether or not the decision-makers considered the complaints Plaintiff made to
HR about O’Malley immediately before the Corporate Defendants terminated Plaintiff. Just as
with Plaintiff’s claims of pregnancy discrimination and FMLA retaliation, the Corporate
Defendants have failed to show that there is no genuine issue of material fact as to the
motivations for Plaintiff’s termination. Accordingly, the Corporate Defendants are not entitled
to summary judgment on Plaintiff’s NYSHRL and NYCHRL retaliation claims.
B.
Discrimination and Retaliation Claims against Defendant O’Malley
For the reasons discussed below, O’Malley cannot be held directly liable on Plaintiff’s
FMLA retaliation and NYSHRL discrimination claims, but she may be liable for retaliation
under the NYSHRL and for discrimination and retaliation under the NYCHRL
1.
FMLA Claim
A person can face individual liability under the FMLA only if that person is an
“employer.” See Smith v. Westchester County, 769 F. Supp. 2d 448, 475 (S.D.N.Y. 2011). The
term “employer,” in this context, can include “any person who acts directly or indirectly in the
interest of an employer to any of the employer’s employees,” 29 C.F.R. § 825.104(d), but to
determine whether an individual qualifies as an individual employer acting “in the interest of
[another] employer,” courts in this Circuit have adopted an “economic reality” test, Smith, 769 F.
Supp. 2d at 475.
Under this test, to determine whether a person or entity is an employer, courts consider
whether the alleged employer “(1) had the power to hire and fire the employees, (2) supervised
and controlled employee work schedules or conditions of employment, (3) determined the rate
and method of payment, and (4) maintained employment records.” Herman v. RSR Sec. Servs.,
22
Ltd., 172 F.3d 132, 139 (2d Cir.1999) (internal quotation marks and citation omitted). “No one
of the four factors standing alone is dispositive. Instead, the ‘economic reality’ test encompasses
the totality of circumstances . . . .” Id. (citation omitted). The Second Circuit has clarified that
its cases do not “support[] the application of a rigid four-part test” and that the four factors above
“can be sufficient to establish employer status” but are not “necessary to establish an
employment relationship.” Ling Nan Zheng v. Liberty Apparel Co. Inc., 355 F.3d 61, 69 (2d Cir.
2003). On the other hand, to grant summary judgment to a defendant, “the Court need not decide
that every factor weighs” in the defendant’s favor. Id. at 77.
According to evidence adduced by Defendants and not refuted by Plaintiff, O’Malley (1)
did not have authority to hire or fire Plaintiff, (2) did not have sole authority to set Plaintiff’s
working hours or schedule, did not classify employees as being exempt or non-exempt from
federal or state overtime pay requirements, and did not accept, process, or approve associates’
requests for FMLA leave; (3) did not have sole authority to set Plaintiff’s salary; and (4) did not
maintain employment records. (Foley Decl. I ¶¶ 32-36.)
To be sure, O’Malley was Malena’s boss and hence supervised her schedule and
conditions of employment. And she played a part in setting Plaintiff’s salary. (See Performance
Review Form dated April 16, 2008.)
But in view of all the circumstances, O’Malley was not, in economic reality, Malena’s
employer. Accordingly, O’Malley cannot be liable for the FMLA retaliation that Plaintiff
alleges. O’Malley’s motion for summary judgment is granted as to this claim.
2.
NYSHRL Discrimination Claim
Again, under the NYSHRL’s Section 296(1)(a), it is “an unlawful discriminatory
practice: (a) [f]or an employer . . . because of an individual’s . . . sex [or pregnancy] . . . to
23
discharge from employment such individual or to discriminate against such individual in
compensation or in terms, conditions or privileges of employment.” N.Y. Exec. Law § 296(1).
Individual liability may lie under § 296(1) but is “limited to individuals with ownership
interest or supervisors, who themselves, have the authority to hire and fire employees.” Banks v.
Corr. Servs. Corp., 475 F.Supp.2d 189, 199 (E.D.N.Y. 2007) (internal quotation marks and
citation omitted); see also Hubbard v. No Parking Today, Inc., No. 08 Civ. 7228 (DAB), 2010
U.S. Dist. LEXIS 101218, at *29-30 (S.D.N.Y. Sept. 22, 2010); Patrowich v. Chemical Bank, 63
N.Y.2d 541, 542, 483 N.Y.S.2d 659, 473 N.E.2d 11 (1984) (per curiam); Tomka v. Seiler Corp.,
66 F.3d 1295, 1317 (2d Cir. 1995) (citing Patrowich).
As discussed above, the evidence shows that O’Malley did not have authority to hire or
fire Plaintiff or to unilaterally set Plaintiff’s schedule, hours, or salary. No evidence shows that
O’Malley had an ownership interest in Victoria’s Secret or any of its subsidiaries. Accordingly,
O’Malley cannot be held directly liable as an employer under the NYSHRL’s § 296(1) and is
granted summary judgment on Plaintiff’s discrimination claim pursuant to that section.
3.
NYSHRL Retaliation Claim and NYCHRL Claims
The NYSHRL also provides that it is “an unlawful discriminatory practice for any person
engaged in any activity to which this section applies to retaliate or discriminate against any
person because he or she has opposed any practices forbidden under this article.” N.Y. Exec.
Law § 296(7). O’Malley may be subject to liability under this provision because it applies to
“any person,” not only employers.
The NYCHRL provides a broader basis for direct individual liability than the NYSHRL.
The NYCHRL makes it unlawful for “an employer or an employee or agent thereof, because of
the actual or perceived . . . gender [or pregnancy] . . . of any person . . . to discharge from
24
employment such person or to discriminate against such person in compensation or in terms,
conditions or privileges of employment.” NYCHRL § 8-107(1)(a) (emphasis added). Thus, the
NYCHRL provides for individual liability of an employee “regardless of ownership or decisionmaking power.” Banks, 475 F. Supp. 2d at 200 (citing Murphy v. ERA United Realty, 251
A.D.2d 469, 674 N.Y.S.2d 415, 417 (N.Y. App. Div. 1998)).
However, as is clear from the text of the NYSHRL retaliation provision and the
NYCHRL, individual liability under them is limited to cases where “an individual defendant . . .
‘actually participates in the conduct giving rise to’ the plaintiff’s [discrimination or] retaliation
claim.” Hozer v. Pratt Indus. (USA), No. 10 Civ. 3874 (TLM), 2012 U.S. Dist. LEXIS 78811, at
*2 n.1 (E.D.N.Y. June 6, 2012) (retaliation) (internal quotation marks and citation omitted); see
also Schanfield v. Sojitz Corp. of Am., 663 F. Supp. 2d 305, 344 (S.D.N.Y. 2009) (NYCHRL
discrimination).
As discussed above, the claims against the Corporate Defendants survive summary
judgment on the basis that the Corporate Defendants, knowingly or not, may have terminated
Plaintiff because of discriminatory or retaliatory intent attributable to O’Malley. By supplying
the intent and the complaints that may have led to Plaintiff’s termination, O’Malley may have
“actually participate[d] in the conduct giving rise to the plaintiff’s . . . claim[s].” Hozer, 2012
U.S. Dist. LEXIS 78811, at *2 n.1; cf. Feingold v. New York, 366 F.3d 138, 158 (2d Cir. 2004)
(finding “triable question as to whether each of the named individual defendants ‘actually
participate[d]’ in the conduct giving rise to [the] claim of unlawful discrimination in violation of
the NYSHRL” where the defendants “merely had the ability to review and comment on the
plaintiff’s performance”) (citing Tomka, 66 F.3d at 1317); Chapkines v. N.Y. Univ., No. 02 Civ.
6355 (RJH)(KNF), 2004 U.S. Dist. LEXIS 2990, at *15 (S.D.N.Y. Feb. 25, 2004) (finding, for
25
aiding and abetting purposes, that one defendant “participated in [plaintiff’s termination] by
recommending that plaintiff not be reappointed”). Accordingly, O’Malley is not granted
summary judgment as to the direct-liability claims raised against her for retaliation under the
NYSHRL or for discrimination and retaliation under the NYCHRL.
C.
Aiding-and-Abetting Claims
In addition to direct liability, the NYSHRL and NYCHRL each provide for aider-andabettor liability, and Plaintiff raises claims under these provisions as well. In the complaint,
Plaintiff’s aiding-and-abetting claims appear to be raised against both O’Malley and the
Corporate Defendants. (Compl. ¶ 89-90 (alleging “aiding and abetting engaged in by each of the
named defendants”).)
The NYSHRL’s § 296(6) states that “[i]t shall be an unlawful discriminatory practice for
any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this
article [including discrimination and retaliation], or to attempt to do so.” N.Y. Exec. Law §
296(6). To be liable under § 296(6), an individual employee need not have supervisory or hiring
and firing power, but must have “actually participated in the conduct giving rise to the claim.”
Feingold, 366 F.3d at 157. The NYCHRL’s § 8-107(6) also supports claims for aiding and
abetting, which are “susceptible to the same standard as under the NYSHRL, as language of the
two laws is virtually identical.” See Schanfield, 663 F. Supp. 2d at 344 (internal quotation marks
and citation omitted).
1.
O’Malley
As discussed above, there is evidence that would allow a jury to infer that O’Malley
“actually participated in the conduct giving rise to the claim of discrimination” in the sense that
she may have provided the intent and the complaints that may have led to Plaintiff’s termination.
26
Cf. Chapkines, 2004 U.S. Dist. LEXIS 2990, at *15 (finding, for aiding and abetting purposes,
that one defendant “participated in [plaintiff’s termination] by recommending that plaintiff not be
reappointed.”) Therefore, if the Corporate Defendants are indeed liable for discriminating and
retaliating against Malena, O’Malley may potentially have “aid[ed], abet[ted], [or] incite[d]”
their violation of the human rights laws. Accordingly, O’Malley is not granted summary
judgment as to the aiding-and-abetting claims raised against her under the NYSHRL and the
NYCHRL.
2.
Corporate Defendants
Under the NYSHRL, “[a]n individual may not be held liable . . . merely for aiding and
abetting his own discriminatory conduct but only for assisting another party in violating” that
law. Virola v. XO Commc’ns, Inc., No. 05 Civ. 5056 (JG) (RER), 2008 WL 1766601, at *20,
2008 U.S. Dist. LEXIS 30413 (E.D.N.Y. Apr. 15, 2008)). 7 This rule applies as well to
NYCHRL aider-and-abettor claims. See Schanfield, 663 F. Supp. 2d at 344 (explaining that
claims under both statutes are “susceptible to the same standard”).
Plaintiff’s brief appears to recant her aider-and-abettor claim against the Corporate
Defendants. (See Pl.’s Br. at 22 (“[W]e are seeking direct liability against the Corporate
Defendants, as well as direct and aiding and abetting liability against O’Malley.”).) This
recanting is wise because there can be no aider-and-abettor liability as to the Corporate
Defendants for aiding and abetting their own conduct. Nor can there be such liability as to the
Corporate Defendants for aiding and abetting O’Malley’s conduct: though O’Malley may be
directly liable for retaliation under the NYSHRL or discrimination or retaliation under the
7
See also Chamblee v. Harris & Harris, Inc., 154 F. Supp. 2d 670, 677 n.1 (S.D.N.Y. 2001) (“[A] primary actor
cannot be aider and abettor of his own actions . . . .”) (citing Hicks v. IBM, 44 F. Supp. 2d 593, 600 (S.D.N.Y.
1999)); Strauss v. New York State Dep’t of Educ., 26 A.D.3d 67, 73, 805 N.Y.S.2d 704 (N.Y. App. Div. 2005)
(“[W]e hold that individuals cannot be held liable under Executive Law § 296(6) for aiding and abetting their own
violations of the Human Rights Law.”).
27
NYCHRL, these claims against her are still derivative of the claims against the Corporate
Defendants. This is so because, if the Corporate Defendant’s termination of Malena was not
unlawful, then O’Malley cannot be liable for it. Just as the Corporate Defendants cannot be
liable for aiding their own conduct, so too they cannot be liable for aiding O’Malley to aid their
own conduct. Accordingly, the Corporate Defendants are granted summary judgment as to the
aider-and-abettor claim against them.
D.
Spread-of-Hours Claim
Plaintiff also raises a claim under New York’s spread-of-hours law, which provides that
an “employee shall receive one hour’s pay at the basic minimum hourly wage rate, in addition to
the minimum wage required [by New York’s minimum wage law] for any day in which . . . the
spread of hours exceeds 10 hours.” N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.4.
As Magistrate Judge Andrew Peck has noted, “[m]ost courts in this Circuit have ruled
that New York’s spread of hours provision applies only to employees earning minimum wage,”
though some “[o]ther [c]ourts have applied New York’s spread of hours provision to all
employees, even those earning more than minimum wage.” Li Ping Fu v. Pop Art Int’l Inc., No.
10 Civ. 8562 (DLC) (AJP), 2011 U.S. Dist. LEXIS 113614, at *22-23 (S.D.N.Y. Sept. 19, 2011),
report and recommendation adopted in pertinent part by 2011 U.S. Dist. LEXIS 140414
(S.D.N.Y. Dec. 6, 2011) (citation omitted). Among other reasons, Judge Peck
agree[d] with the majority view because the language of New York’s spread of
hours provision specifically states that the premium is ‘in addition to the
minimum wage.’ N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.4. ‘It is
therefore to be expected that the provision will not affect workers whose total
weekly compensation is already sufficiently above the minimum rate.’ Chan v.
Triple 8 Palace, Inc., 2006 U.S. Dist. LEXIS 15780, 2006 WL 851749 at *21; see
also, e.g., Sosnowy v. A. Perri Farms, Inc., 764 F. Supp. 2d at 474 (‘Based on the
Court’s own reading of the statute, the Court agrees with the cases that find that
the explicit reference to the “minimum wage” in section 142-2.4 indicates that
“the spread-of-hours provision is properly limited to enhancing the compensation
28
of those receiving only the minimum required by law.”’); Espinosa v. Delgado
Travel Agency, Inc., 05 Civ. 6917, 2007 U.S. Dist. LEXIS 15149, 2007 WL
656271 at *2 (S.D.N.Y. Mar. 2, 2007) (‘By its plain language, section 142-2.4(a)
only provides supplemental wages to workers who are paid the minimum wage
required under New York law. It does not ensure additional compensation to
employees whose wages sufficiently exceed that floor.”), modified on other
grounds, 2007 U.S. Dist. LEXIS 30676, 2007 WL 1222858 (S.D.N.Y. Apr. 24,
2007).
Moreover, the New York State Department of Labor (‘DOL’) has issued Opinion
Letters interpreting New York’s spread of hours provision as applying only to
employees earning minimum wage. See N.Y.S. Dep’t of Labor 3/16/07 Opinion
Letter at 1, File No. RO-07-0009, http://labor.ny.gov/legal/counsel/pdf
/Minimum%20Wage%20Orders/RO-07-0009A.pdf (last visited Sept. 16, 2011)
Li Ping Fu, 2011 U.S. Dist. LEXIS 113614, at *24-25.
The Court agrees with Judge Peck’s reasoning that New York’s spread-of-hours law does
not apply to plaintiffs who earned substantially more than the minimum wage. Plaintiff earned
$75,000 annually (roughly $36 per hour), well above New York’s minimum wage, which was
$7.15 per hour or lower at all times during Plaintiff’s employment at Victoria’s Secret. See N.Y.
Comp. Codes R. & Regs. tit. 12, § 142-2.1(a). Accordingly, the New York spread-of-hours law
does not apply to this case, and Defendants are entitled to summary judgment with regard to
Plaintiff’s spread-of-hours claim.
E.
Withdrawn Claims
Plaintiff has withdrawn three of her claims for (1) failure to keep accurate records under
the FLSA, 29 U.S.C. § 211; (2) failure to keep accurate records under the NYSLL, § 195(4); and
(3) failure to provide meal breaks under the NYSLL, § 162.2. (See Pl.’s Br. at 13.) Accordingly,
these claims are dismissed.
IV.
Conclusion
For the foregoing reasons, Defendants’ motions are GRANTED in part and DENIED in
part.
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Specifically, the Corporate Defendants’ motion for summary judgment is granted as to
the claims for aiding and abetting under the NYSHRL and NYCHRL and for violation of the
NYSLL’s spread-of-hours provision. The Corporate Defendants’ motion is denied in all other
respects. O’Malley’s motion for summary judgment is granted as to the claims for FMLA
retaliation, direct liability for discrimination under the NYSHRL, and violation of the NYSLL’s
spread-of-hours provision. O’Malley’s motion is denied in all other respects. Plaintiff’s
withdrawn claims—for failure to keep accurate records under the FLSA, failure to keep accurate
records under the NYSLL, and failure to provide meal breaks under the NYSLL—are dismissed.
The Clerk of Court is directed to close the motions at docket entry numbers 76 and 82.
SO ORDERED.
Dated: New York, New York
August 16, 2012
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