Ardigo v. J. Christopher Capital, LLC et al

Filing 30

OPINION AND ORDER re: 21 MOTION for Sanctions Pursuant to Rule 11 of the Federal Rules of Civil Procedure filed by Jamie Ardigo, 14 MOTION to Dismiss the Amended Complaint filed by Edward Welsh, J. Christopher Capital, LLC, Christo pher Burch. For the foregoing reasons, Defendants' motion to dismiss the Amended Complaint is GRANTED as to Plaintiff's claims of employment discrimination and hostile work environment. It is also GRANTED as to Plaintiff's and aiding-a nd-abetting claim with respect to Defendant Burch. The motion to dismiss is DENIED as to both Plaintiff's retaliation claim and the aiding-and-abetting claim with respect to Defendant Welsh. In light of this disposition, Plaintiff's motion for sanctions, which argues that Defendants filed an entirely frivolous motion, is DENIED. Indeed, if anything, it is Plaintiff's motion for sanctions that is frivolous, not Defendants' motion to dismiss. Plaintiff is given until April 5, 2 013, to properly file the Amended Complaint by e-mailing it to [e-mail]. Failure to do so will result in an appropriate sanction. The Clerk of Court is directed to terminate Docket Nos. 14 and 21. (Signed by Judge Jesse M. Furman on 3/25/2013) (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JAMIE ARDIGO,
:
:
Plaintiff,
:
-v:
:
J. CHRISTOPHER CAPITAL, LLC,
:
CHRISTOPHER BURCH,
:
and EDWARD WELSH, individually,
:
:
Defendants.
:
---------------------------------------------------------------------- X

Mar 25, 2013

12 Civ. 3627 (JMF)
OPINION AND ORDER

JESSE M. FURMAN, United States District Judge:
This employment discrimination case, premised on diversity jurisdiction, stems from
plaintiff Jamie Ardigo’s employment as Director of Field Human Resources at J. Christopher
Capital, LLC (“Christopher Capital”) from November 9, 2011, to February 7, 2012. Ardigo sues
his former employer under the New York City Human Rights Law (“NYCHRL”), N.Y.C.
Administrative Code, § 8-101, et. seq., alleging (1) discrimination on the basis of sexual
orientation; (2) a hostile work environment; and (3) retaliation. Ardigo also brings aiding-andabetting claims under the NYCHRL against Christopher Burch, the owner of Christopher
Capital, and Edward Welsh, Ardigo’s direct supervisor at the firm.
Defendants have moved to dismiss Ardigo’s Amended Complaint pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. After Defendants filed their motion to dismiss,
Plaintiff moved for sanctions on the ground that Defendants’ motion was “entirely frivolous” and
designed only to “intimidate, harass and delay.” Briefing on the latter motion, however, has
been stayed pending the Court’s decision on Defendant’s motion to dismiss. For the reasons

discussed below, Defendants’ motion to dismiss is GRANTED in part and DENIED in part.
Additionally, notwithstanding the stay on briefing, Plaintiff’s motion for sanctions is DENIED.
BACKGROUND
The following facts are taken from the Amended Complaint and are assumed to be true
for purposes of this motion. See, e.g., Lafaro v. N.Y. Cardiothoracic Grp., PLLC, 570 F.3d 471,
475 (2d Cir. 2009).
On November 9, 2011, Ardigo, a gay man, was offered the position of Director of Field
Human Resources at Christopher Capital, running the Human Resources function with
Defendant Welsh, the Vice President of Human Resources. (Am. Compl. ¶ 12). From the
beginning of his employment at Christopher Capital, Ardigo alleges, he “overheard” senior level
executives make “offensive and inappropriate comments regarding gender and sexual
orientation.” (Id. ¶ 13). The Amended Complaint cites three examples. First, on or about
November 28, 2011, and December 5, 2011, Ardigo overheard Defendant Burch, the firm’s
owner, state that he “only hire[d] gay men because they [we]re productive and [he] trust[ed]
them.” (Id. ¶ 14). On a third occasion (the date of which is not specified), Ardigo overheard
Monika Chiang, the company’s Creative Director and Burch’s girlfriend, say to Nick Steel,
Director of Public Relations for MC, a brand of the company: “Oh, are you going to introduce
me to another gay guy?!” (Id. ¶ 15). Steel was embarrassed by the comment, and Chiang then
stated (presumably in reference to Ardigo): “Oh, I didn’t realize you were in HR.” (Id.).
Ardigo complained to Welsh about Burch’s and Chiang’s comments, describing them as
“repeated, offensive, inappropriate and unprofessional.” (Id. ¶ 16). He also stated he was
“concerned for the company.” (Id.). Welsh replied only that Burch was “the owner of the
Company.” (Id.). Ardigo alleges that “[n]othing was done to correct the situation” and that the
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“repeated, offensive, harassing comments and the hostile work environment they created
continued.” (Id. ¶ 17).
On December 9, 2011, Welsh tasked Ardigo with investigating a claim of harassment
against Steel, then the General Manager of MC in Los Angeles. (Id. ¶ 18). Ardigo conducted a
short investigation and informed Welsh that Steel had made statements about “dildos in purses”
and had said that it was “obvious that one of the employees did not play with Barbie dolls
growing up.” (Id.). Although Ardigo expressed concerns about Steel’s behavior, Welsh
appeared to downplay it. (Id. ¶ 19). Shortly thereafter, Welsh and Ardigo met with Steel about
the complaint. Steel admitted that he had made the comments and acknowledged that they were
neither acceptable nor conducive to a positive work environment. (Id. ¶ 20). In doing so,
however, he also mentioned Burch’s offensive comments about gay men and women. (Id.).
Against Ardigo’s recommendation, Welsh declined to issue a formal warning to Steel. Instead,
Welsh asked Ardigo to send him a “recapitulatory email.” (Id. ¶ 21).
The Amended Complaint alleges that, after this incident, Welsh started “a retaliatory
campaign” against Ardigo. (Id. ¶ 23). On or about January 5, 2012, for instance, Welsh accused
Ardigo of putting up a “wall” between them and put pressure on Ardigo to reveal personal
information about himself such as his sexual orientation. (Id. ¶¶ 24-25). Toward the end of
January, Welsh told Ardigo that “he did not know [him] and that their relationship felt forced.”
(Id. ¶ 26). According to the Amended Complaint, these comments were followed by a
“retaliatory campaign consisting of inaccurate criticism [of Ardigo’s] work performance.” (Id.
¶¶ 27-28).
On two occasions in late January 2012, Ardigo expressed concern to Welsh about the
“proximity in time between his claims of discrimination and a hostile work environment” and
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Welsh’s criticisms. (Id. ¶¶ 28, 30). Ardigo added that he disagreed with Welsh’s assessments of
his performance, insisting that his work was “highly appreciated within the company,” as a
general manager had publicly acknowledged. (Id. ¶ 30).
Approximately two weeks later, on February 7, 2012, Welsh “abruptly” fired Ardigo.
(Id. ¶ 31). Welsh told Ardigo that he was “not a right fit” and that Christopher Capital was “not
the right company” for him. (Id.). Welsh further stated that he had been told that Ardigo was a
“disruption” to the business, although he did not provide any “substantial examples” in support
of this allegation. (Id.). Ardigo was surprised by the statement, as he “had been thanked several
times for his productive support.” (Id.).
LEGAL STANDARDS
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept the
factual allegations set forth in the complaint as true and draw all reasonable inferences in favor
of the plaintiff. See, e.g., Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009). To survive a
Rule 12(b)(6) motion, however, the plaintiff must plead sufficient facts “to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is
facially plausible “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 (2009) (citing Twombly, 550 U.S. at 556). More specifically, the plaintiff
must allege sufficient facts to show “more than a sheer possibility that a defendant acted
unlawfully.” Id. A complaint that offers only “labels and conclusions” or “a formulaic recitation
of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Further, if the
plaintiff has not “nudged [his or her] claims across the line from conceivable to plausible, [the]
complaint must be dismissed.” Id. at 570.
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In the present case, Plaintiff’s claims are all brought under the NYCHRL. In relevant
part, the NYCHRL makes it unlawful for any employer “because of the actual or perceived . . .
sexual orientation . . . of any person, . . . to discriminate against such person in compensation or
in terms, conditions, or privileges of employment.” NYCHRL § 8-107(1)(a). The law has a
“uniquely broad and remedial” purpose. Local Civil Rights Restoration Act of 2005 (the
“Restoration Act”), N.Y.C. Local Law No. 85 (2005). As such, it “must be reviewed
independently from and more liberally than [its] federal and state counterparts.” Loeffler v.
Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d Cir. 2009) (internal quotation marks omitted).
Federal cases — such as cases involving similar claims under Title VII of the Civil Rights Act of
1964 (“Title VII”) — “may be used as aids in interpretation only to the extent that the
counterpart provisions are viewed ‘as a floor below which the [NYCHRL] cannot fall, rather
than a ceiling above which the local law cannot rise.’” Williams v. City of New York Hous.
Auth., 872 N.Y.S. 2d 27, 29, 31 (1st Dep’t 2009) (quoting The Restoration Act § 1).
A court “considering a claim under the NYCHRL must first identify the provision of the
City HRL [it is] interpreting and then ask, as required by the City Council: What interpretation
would fulfill the broad and remedial purposes of the City’s Human Rights Law?” Fattoruso v.
Hilton Grand Vacations Co., LLC, 12 Civ. 911 (KBF), 2012 WL 2102394, at *4 (S.D.N.Y. June
11, 2012) (internal quotation marks omitted). At the same time, federal courts must be mindful
that “the NYCHRL does not operate as a general civility code,” id. (internal quotation marks and
emphasis omitted), and that, “at a minimum, employment discrimination claims [under the
NYCHRL] must meet the standard of pleading set forth in Twombly and Iqbal,” Goodman v.
Port Auth., 850 F. Supp. 2d 363, 386 (S.D.N.Y. 2012) (internal quotation marks omitted).

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DISCUSSION
The Amended Complaint includes two causes of action, but Plaintiff really alleges three
discrete claims under the NYCHRL: (1) discrimination on the basis of sexual orientation; (2) a
hostile work environment; and (3) retaliation. The Court will address each in turn. 1
A. Discrimination on the Basis of Sexual Orientation
Ardigo’s first claim is for discrimination on the basis of his sexual orientation. To prevail
on that claim, a plaintiff must “ultimately prove that (1) he is a member of a protected class; (2)
he is competent to perform the job or is performing his duties satisfactorily; (3) he suffered an
adverse employment decision or action; and (4) the decision or action occurred under
circumstances giving rise to an inference of discrimination based on his membership in the
protected class.” Dawson v. Bumble & Bumble, 398 F.3d 211, 216 (2d Cir. 2005) (internal
quotation marks omitted). An adverse employment decision or action is “generally characterized
as a materially adverse change in the terms and conditions of employment,” and “may include
termination of employment, a demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, significantly diminished material responsibilities,
or other indices unique to a particular situation.” Zelnik v. Fashion Inst. of Tech., 464 F.3d 217,
225 (2d Cir. 2006) (internal quotation marks omitted).
Ardigo has failed to state a discrimination claim. Although a section of the Amended
Complaint is titled “Sexual Orientation Discrimination and Hostile Work Environment,” the
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In their motion to dismiss, Defendants contend that this case should be dismissed because
Plaintiff failed to comply with the Court’s Electronic Case Filing Rules and Instructions — by
failing to e-mail a copy of the Amended Complaint to [e-mail]. (Defs.’
Mem. of Law 19-21). Although Plaintiff’s failure to do so despite repeated deficiency notices on
the docket is inexplicable, the Court declines to dismiss the Amended Complaint on the basis of
this technical error. Instead, Plaintiff is given until April 15, 2013, to properly file the Amended
Complaint. Failure to do so will result in an appropriate sanction.
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facts pleaded in that section relate only to the allegedly offensive comments made by his
superiors and co-workers. And while he does bring a claim for unlawful termination, he alleges
that his termination was “in direct retaliation for expressing his concerns about discrimination
based on sexual orientation, and a hostile work environment,” (Am. Compl. ¶ 32), not because of
his actual or perceived sexual orientation. Put simply, the Amended Complaint does not allege
that Ardigo suffered any materially adverse change in the terms and conditions of his
employment based on his membership in a protected class. Accordingly, his discrimination
claim cannot survive Defendants’ motion to dismiss. Cf. Bermudez v. City of New York, 783 F.
Supp. 2d 560, 590 (S.D.N.Y. 2011) (dismissing a discrimination claim where it was duplicative
of a hostile work environment claim).
B. Hostile Work Environment
Next, Plaintiff alleges that he was subjected to repeated comments that made his “work
environment increasingly uncomfortable and hostile.” (Am. Compl. ¶¶ 13, 17). To prevail on a
hostile work environment claim under the NYCHRL, a plaintiff must show that he was “treated
less well than other employees because of” his membership in a protected class. Williams, 872
N.Y.S. 2d at 39. Although this test is easier to meet than the tests for hostile work environment
claims under the NYCHRL’s state and federal analogues, behavior that “could only be
reasonably interpreted by a trier of fact as representing no more than petty slights and trivial
inconveniences” still does not suffice. Id. at 41. In particular, the incidents alleged must amount
to more than “sporadic insensitive comments” to state a plausible claim. Bermudez v. City of
New York, 783 F. Supp. 2d 560, 593 (S.D.N.Y. 2011) (internal quotation marks omitted); see
also, e.g., Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., No. 09 Civ. 1251 (DAB), 2011
WL 3586060, at *9 (S.D.N.Y. July 29, 2011) (citing cases dismissing NYCHRL hostile work
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environment claims on summary judgment when “the incidents alleged amount[ed] to only
sporadic insensitive comments”).
Applying these standards here, Ardigo fails to state a hostile work environment claim.
Conclusory allegations of “repeated, offensive, harassing comments” aside (Am. Compl. ¶ 17),
the Amended Complaint identifies only three occasions when allegedly offensive statements
were made. Twice, Ardigo allegedly overheard Burch state that he “only hire[d] gay men
because they [we]re productive and [he] trust[ed] them.” (Id. ¶ 14). And on a third occasion, he
overheard Chiang say to Steel: “Oh, are you going to introduce me to another gay guy?!” (Id.
¶ 15). The only other specific allegations made to support the hostile work environment claim
are the events surrounding Ardigo’s investigation of Steel’s allegedly harassing conduct. Those
events, however, undermine rather than support Ardigo’s claim of hostile work environment.
Far from ignoring potentially offensive and harassing behavior, Welsh asked Ardigo to look into
the allegations against Steel. Within two days of Ardigo reporting his findings, Welsh and
Ardigo met with Steel to inform him that his “behavior was unacceptable and not conducive to a
supportive, positive work environment.” (Id. ¶ 20). Although Ardigo thought that the
consequences for Steel should have been harsher, his disagreement with Welsh on that score is
not a reason to infer hostility in the workplace.
At most, therefore, the Amended Complaint alleges that, over a period of several months,
Ardigo overheard three mildly offensive statements. Even considering these allegations
cumulatively, as the Court must, see, e.g., Schwapp v. Town of Avon, 118 F.3d 106, 110-11 (2d
Cir.1997), this is not sufficient, under Iqbal and Twombly, to state a plausible hostile work
environment claim under the NYCHRL. Cf. Yee Sing Li v Educ. Broad. Corp., Index No.
115948/2010, 2011 N.Y. Misc. LEXIS 3522, at *14-15 (N.Y. Sup. Ct. June 30, 2011) (rejecting
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a hostile work environment claim under the NYCHRL where the defendant had stroked
plaintiff’s arm and stated “[a]sian skin is so soft” and “you love it when a hot guy like me
touches you,” and, on a later occasion, grabbed his buttocks). Ardigo’s conclusory assertions of
hostility and offensive comments are not enough to salvage the claim. See Iqbal, 556 U.S. at 678
(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice [to state a claim].”).
C. Retaliation
Ardigo’s final direct claim is for retaliation — specifically, that Welsh made “false
claims regarding his work performance” and ultimately fired him, “solely in retaliation for . . .
raising his and others’ rights under anti-discrimination laws.” (Am. Compl. ¶¶ 23-32). To
prevail on a retaliation claim under the NYCHRL, “a plaintiff must show 1) he engaged in a
protected activity; 2) his employer was aware of that activity; 3) he suffered an action that would
be reasonably likely to deter a person from engaging in a protected activity; and 4) that there was
a causal connection between the protected activity and the action. If relevant, the McDonnellDouglas burden-shifting analysis also applies.” Pilgrim v. McGraw-Hill Cos., 599 F. Supp. 2d
462, 469 (S.D.N.Y. 2009).
In the present case, Defendants do not dispute that Ardigo has adequately alleged three of
the four factors required to show a prima facie case. First, Ardigo’s complaints were made to
Welsh, so his employer was plainly aware of his activity. Second, Ardigo was given negative
performance reviews and was ultimately fired, and therefore suffered “an action that would be
reasonably likely to deter a person from engaging in a protected activity.” Pilgrim, 599 F. Supp.
2d at 469; see, e.g., Birkholz v. City of New York, 10-CV-4719 (NGG) (SMG), 2012 WL 580522,
at *15 (E.D.N.Y. Feb. 22, 2012) (“The CHRL is slightly more solicitous of retaliation claims
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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.’” (quoting N.Y.C. Admin. Code § 8107(7))). And third, the causal connection is adequately alleged insofar as Ardigo’s negative
performance reviews and termination occurred within weeks of his complaints. See, e.g.,
Gorman-Bakos v. Cornell Coop. Extension of Schenectady County, 252 F.3d 545, 554 (2d Cir.
2001) (“[A] plaintiff can indirectly establish a causal connection to support a discrimination or
retaliation claim by showing that the protected activity was closely followed in time by the
adverse employment action.” (internal quotation marks and alteration omitted)). Thus, the only
dispute between the parties is whether the Amended Complaint adequately alleges that Ardigo
engaged in “protected activity.”
Although the question is a close one, the Court concludes that it does. To establish that
he engaged in protected activity, Ardigo “need not establish that the conduct [he] opposed was
actually a violation of [the law], but only that [he] possessed a good faith, reasonable belief that
the underlying employment practice was unlawful.” Summa v. Hofstra Univ., 708 F.3d 115 (2d
Cir. 2013) (internal quotation marks omitted). Here, Ardigo may well have trouble proving the
reasonableness of his belief that Defendants violated the NYCHRL given that, for the reasons
stated above, his Amended Complaint does not come particularly close to stating plausible
discrimination or hostile work environment claims. But in light of (1) Ardigo’s allegations that
he complained about multiple arguably offensive comments and about Welsh’s alleged
retaliation (in the form of false performance evaluations) for his initial complaints and (2) the
fact that the NYCHRL has been construed so broadly, the Court cannot say that the Amended
Complaint fails to state a plausible claim of retaliation. See, e.g., Riscili v. Gibson Guitar Corp.,
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605 F. Supp. 2d 558, 565-67 (S.D.N.Y. 2009) (citing cases holding that “a single offensive
remark may support a reasonable, if mistaken, belief that the law has been violated”).
D. Aiding and Abetting
Finally, the Amended Complaint brings an aiding-and-abetting claim against Defendants
Burch and Welsh. Under the NYCHRL, it is “an unlawful discriminatory practice for any person
to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this [provision],
or to attempt to do so.” N.Y. Exec. Law § 296(6); N.Y.C. Admin. Code § 8-107(6). Accessory
liability, however, may be found only where a where a primary violation has been established.
See, e.g., Patane v. Clark, 508 F.3d 106, 115 (2d Cir. 2007); see also, e.g., Sowemimo v.
D.A.O.R. Sec., Inc., 43 F. Supp. 2d 477, 490 (S.D.N.Y. 1999) (“[L]iability under the . . .
NYCHRL must first be established as to the employer/principal before an individual may be
considered an aider and abettor.”). Here, because the only claim that survives the motion to
dismiss is Ardigo’s retaliation claim, and Burch is not alleged to have had anything to do with
the retaliation, Ardigo’s aiding-and-abetting claim with respect to Burch is dismissed. Welsh, on
the other hand, is alleged to have been directly and personally involved in the retaliation, by
giving Ardigo false performance evaluations and firing him. Accordingly, the aiding-andabetting claim against Welsh survives.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss the Amended Complaint is
GRANTED as to Plaintiff’s claims of employment discrimination and hostile work environment.
It is also GRANTED as to Plaintiff’s and aiding-and-abetting claim with respect to Defendant
Burch. The motion to dismiss is DENIED as to both Plaintiff’s retaliation claim and the aidingand-abetting claim with respect to Defendant Welsh.
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In light of this disposition, Plaintiff’s motion for sanctions, which argues that Defendants
filed an entirely frivolous motion, is DENIED. Indeed, if anything, it is Plaintiff’s motion for
sanctions that is frivolous, not Defendants’ motion to dismiss.
Plaintiff is given until April 5, 2013, to properly file the Amended Complaint by emailing it to [e-mail]. Failure to do so will result in an appropriate
sanction.
The Clerk of Court is directed to terminate Docket Nos. 14 and 21.

SO ORDERED.
Dated: March 25, 2013
New York, New York

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