Baez v. Anne Fontaine USA, Inc. et al

Filing 72

OPINION & ORDER: Rochelly Baez brings this employment discrimination suit against Anne Fontaine USA, Inc. ("AFUSA"), her former employer, and two of its executives, Ari Zlotkin and Cindy D'Luzansky. It is undisputed that Baez's coworkers discussed an incident in which plaintiff attended a meeting with Zlotkin, AFUSA's chief executive officer ("CEO"), wearing a revealing shirt and no bra. The statements by the coworkers are referred to throughout the part ies' papers as "rumors" - though the facts are materially uncontested. Baez complained about her coworkers' talk. Following this incident, a certain amount of office drama ensued. (As further set forth in this Order.) There is no legal reason why the gender or number of speakers alters the analysis. For the reasons set forth above, defendants' motion for summary judgment is GRANTED in part and DENIED in part. Because none of Baez's claims against Zlotkin withstands summary judgment, the Clerk of Court is directed to terminate him from the case. Ari Zlotkin terminated. (Signed by Judge Katherine B. Forrest on 1/5/2017) (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------------- X
:
ROCHELLY BAEZ,
:
:
Plaintiff,
:
:
-v:
:
ANNE FONTAINE USA, INC., et al.,
:
:
Defendants.
:
:
---------------------------------------------------------------------- X
KATHERINE B. FORREST, District Judge:

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: January 5, 2017

14-cv-6621 (KBF)
OPINION & ORDER

Rochelly Baez brings this employment discrimination suit against Anne
Fontaine USA, Inc. (“AFUSA”), her former employer, and two of its executives, Ari
Zlotkin and Cindy D’Luzansky. It is undisputed that Baez’s coworkers discussed an
incident in which plaintiff attended a meeting with Zlotkin, AFUSA’s chief
executive officer (“CEO”), wearing a revealing shirt and no bra. The statements by
the coworkers are referred to throughout the parties’ papers as “rumors”—though
the facts are materially uncontested. Baez complained about her coworkers’ talk.
Following this incident, a certain amount of office drama ensued. It is undisputed
that “drama” was cited as one of the reasons for plaintiff’s eventual termination.
The issues before the Court are, inter alia, (1) whether in light of the
association of the “drama” with plaintiff’s complaints regarding her coworkers’
discussions of her dress and female body parts, defendants’ consideration of such
“drama” in connection with their termination of Baez can support a claim for
retaliation, and (2) whether unwanted coworker discussions of such an incident (or

a similar incident) can support a claim for hostile work environment. In all events,
it is clear that Baez’s claims are not strong; and it is clear that plaintiff’s action is
not the type with which the relevant discrimination statutes are most concerned.
Nevertheless, the Court cannot say that such facts do not support a very weak claim
of discrimination. Certainly, if comments on bra-less attendance at a meeting were
made by a man, plaintiff’s case would be much stronger. There is no legal reason
why the gender or number of speakers alters the analysis. For the reasons set forth
below, defendants’ motion for summary judgment is GRANTED in part and
DENIED in part.
I.

FACTUAL AND PROCEDURAL BACKGROUND
Unless otherwise noted, the facts set out below are undisputed. The Court

recounts only those facts relevant to the pending motion.
AFUSA is a clothing retailer that operates twenty-five stores in the United
States. (Defs.’ 56.1 Statement ¶ 1, ECF No. 55.) Zlotkin is AFUSA’s president and
CEO. (Id. ¶ 5.) D’Luzansky was AFUSA’s Corporate Controller from February 2006
through May 2014, a role that included human resources responsibilities. (Id. ¶ 6.)
Baez worked at AFUSA from October 2011 until her termination on February 7,
2014. (Id. ¶ 7.) She was the company’s regional manager for the East Coast from
approximately October 2012 until her termination, during which time she was
responsible for fifteen stores. (Id. ¶¶ 7, 10, 11.)
According to defendants, there were several issues with Baez’s job
performance in 2013. (See, e.g., id. ¶¶ 16-38, 48.) Baez contests many of these
allegations. It is undisputed that, in September 2013, Zlotkin started looking to
2

replace her. (Id. ¶ 42.) On September 27, 2013, AFUSA offered Baez’s position to
Laura Stevens. (Id. ¶ 45.) Stevens did not take the job at that time. (Id. ¶ 47.) On
January 6, 2014, however, D’Luzansky set up another meeting between Zlotkin and
Stevens. (Goldberg Affirmation Ex. H, ECF No. 61-8.) On January 21, 2014, AFUSA
offered Stevens the position of “North America Director” beginning February 10,
2014, which Stevens accepted on January 23, 2014. (Id. Ex. B, ECF No. 61-2.)
Central to this case, on December 27, 2013, Baez learned that Amanda
Blynn, the Boston store manager, Julia Fricke, AFUSA’s retail operations manager,
and Abigail LaValle, another store manager, were spreading a rumor 1 that Baez
had worn a revealing shirt and no bra at a meeting with Zlotkin, thereby showing
him her breasts. (Defs.’ 56.1 Statement ¶¶ 14, 31, 35, 55-59.) Baez has not disputed
the fact that she did not wear a bra that day, and indeed testified that she
“normally [doesn’t] wear bras,” but denies that she showed Zlotkin her breasts.
(Baez Dep. 1 40:11-15, 49:20-50:12.) On December 27 or 28, 2013, Baez reported the
rumor to D’Luzansky, the corporate controller. (Defs.’ 56.1 Statement ¶ 62.)
D’Luzansky spoke with Fricke, AFUSA’s retail operations manager, about the
rumor, (id. ¶ 64), counseled Baez not to “write up” LaValle because plaintiff already
had given her a warning, (id. ¶ 66), and counseled against Baez terminating Blynn
because she was a top performing manager, (id. ¶ 67). On December 27, 2013, Baez
also sent an email to Zlotkin complaining that Blynn was telling her team that Baez
As stated above, the word “rumor” is used to describe unwanted coworker discussions of plaintiff; it
is not used to suggest such coworker remarks were not, at least in material part, based in fact.
Although Baez maintains that she never showed her breasts to Zlotkin, (Baez Dep. 1 40:11-15, ECF
No. 67-1), she has conceded that she was not wearing a bra that day and that she normally does not
wear a bra, (id. at 50:7-8, 11-12).
1

3

would be fired after the holidays. (Id. ¶¶ 69, 70.) The email did not mention the
rumor about Baez wearing revealing clothing resulting in her showing Zlotkin her
breasts. (Id. ¶ 71.) In a January 14, 2014 email responding to Baez’s concerns about
the rumor, D’Luzansky wrote that:
[R]egarding the content of rumor/gossip, you either need to be strong
and say ‘so be it, I make my own fashion and life choices. . . .’ Or, if
the content bothers you, you need to adjust what you are doing to
prevent such rumors/gossip, but you can’t prevent people from
having their opinions. (Goldberg Affirmation Ex. F at 3, ECF No. 616.)
D’Luzansky also wrote that she did not “think escalating to a written warning
would be recommended, or necessary, at this time.” (Id.)
On January 30, 2014, at Zlotkin’s direction, D’Luzansky and Baez met with
Blynn to provide her a written warning. (Defs.’ 56.1 Statement ¶¶ 82, 84.) Baez
recorded that conversation. (Id. ¶ 85.) The warning stated:
Over several incidences, staff (both within the Boston store and
within the US company) have commented on [Blynn’s] opinions of
her direct boss, Rochelly Baez. These opinions range from
questioning Rochelly’s reliability, work ethic, managerial skill and
overall character. . . . It has [] created a great amount of distraction
(resulting in gossip and rumor), not only within her region, but
within the US. (Id. ¶ 87.)
Baez disagreed with the wording of the warning, (id. ¶ 88), and, for her part, Blynn
refused to sign the statement. (Id. ¶ 90.)
D’Luzanksy and Zlotkin fired Baez on February 7, 2014. (Id. ¶ 92.) Plaintiff
recorded the meeting. (Id. ¶ 93.) Zlotkin gave three reasons for Baez’s termination:
her management of an employee at the Bal Harbor store; problems with the opening

4

of the Madison Avenue store in New York City; and that plaintiff was associated
with “too much drama.” (Id. ¶ 95.)
Baez also contends that AFUSA wrongfully withheld $5,000 from her after
her termination. (Id. ¶ 105.)
Baez brought this lawsuit against AFUSA, Zlotkin, and D’Luzansky on
August 19, 2014. (Complaint, ECF No. 1.) On January 28, 2015, defendants filed an
amended answer to the complaint with a counterclaim against Baez for secretly
recording a conversation with D’Luzansky and Blynn, in violation of Massachusetts
state law. (Am. Answer & Countercl., ECF No. 20.) The next day, Baez brought an
amended complaint (“AC”). (AC, ECF No. 21.) On February 10, 2015, defendants
answered the amended complaint. (Answer, ECF No. 23.) On February 8, 2016,
defendants filed a motion for summary judgment. (Mot. Summ. J., ECF No. 53.)
That motion was fully briefed as of April 11, 2016. (Reply, ECF No. 64.) On August
23, 2016, U.S. District Judge Analisa Torres ordered the parties to file all record
evidence cited in their summary judgment papers. (Order, ECF No. 66.) The
materials were fully submitted on September 6, 2016. The case was transferred to
the undersigned on November 22, 2016.
II.

LEGAL PRINCIPLES
Summary judgment may not be granted unless a movant shows, based on

admissible evidence in the record, “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 moving party bears the burden of demonstrating “the absence of a
genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
5

On summary judgment, the Court must “construe all evidence in the light most
favorable to the nonmoving party, drawing all inferences and resolving all
ambiguities in its favor.” Dickerson v. Napolitano, 604 F.3d 732, 740 (2d Cir. 2010).
The Court’s function on summary judgment is to determine whether there exist any
genuine issues of material fact to be tried, not to resolve any factual disputes.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).
III. ANALYSIS
A.

Retaliation

Baez alleges that she was fired from AFUSA because she complained about
the rumor that she showed her breasts to Zlotkin by wearing a see-through shirt
and no bra. Baez brings her retaliation claims under Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq., the New York State Human
Rights Law (“NYSHRL”), N.Y. Exec. Law §§ 290 et seq., and the New York City
Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code §§ 8–101 et seq. For the
following reasons, defendants’ motion for summary judgment on Baez’s retaliation
claims is denied.
1.

Title VII & NYSHRL (Counts I & II)

Title VII prohibits employers from “discriminat[ing] against any of its
employees . . . because [an employee] has opposed any practice made unlawful by
Title VII.” 42 U.S.C. § 2000e-3(a). Retaliation claims are analyzed under the
burden-shifting framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Under this framework, the plaintiff bears the initial burden to establish a
prima facie case of retaliation by showing “1) ‘participation in a protected activity’;
6

2) the defendant’s knowledge of the protected activity; 3) ‘an adverse employment
action’; and 4) ‘a causal connection between the protected activity and the adverse
employment action.’” Kwan v. Andalex Grp. LLC, 737 F.3d 834, 844 (2d Cir. 2013)
(quoting Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005)). This
showing creates a “presumption of retaliation,” which the defendant may rebut by
“articulat[ing] a legitimate, non-retaliatory reason for the adverse employment
action.” Chen v. City Univ. of N.Y., 805 F.3d 59, 70 (2d Cir. 2015) (quoting Jute, 420
F.3d at 173). If the defendant provides such an explanation, “the presumption of
retaliation dissipates,” id., and the plaintiff must prove “that the desire to retaliate
was the but-for cause of the challenged employment action,” Univ. of Tex. Sw. Med.

Ctr. v. Nassar, ––– U.S. –––, 133 S. Ct. 2517, 2528 (2013). Retaliation claims under
the NYSHRL are evaluated under the same standard as Title VII claims. See,

e.g., Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 609 (2d Cir. 2006).
Baez has made out a prima facie case of discrimination. She complained
directly to D’Luzanksy, a senior executive, 2 about the rumor and was terminated by
D’Luzansky and Zlotkin—in part because she brought “too much drama” to the
company—weeks later. See Gorman-Bakos v. Cornell Coop. Extension of

Schenectady Cty., 252 F.3d 545, 554 (2d Cir. 2001) (“[A] plaintiff can indirectly
Defendants argue that Baez did not make a good faith complaint of discrimination. (Mot. Summ. J.
Mem. Law 24-25, ECF No. 54.) Although the issue is a close one, the Court ultimately finds that the
content of the rumor, which related to Baez’s status as a female, supports the contention that
plaintiff “had a good faith, reasonable belief that [s]he was opposing an employment practice made
unlawful by Title VII,” Rodas v. Town of Farmington, 567 F. App’x 24, 26 (2d Cir. 2014) (citation
omitted), and defendants should have been on notice that Baez’s complaint was protected activity.
See Benussi v. UBS Fin. Servs. Inc., No. 12 Civ. 1261, 2014 WL 558984, at *8 (S.D.N.Y. Feb. 13,
2014) (finding that a reasonable jury could conclude that a plaintiff’s complaint about comments that
she was “an unmarried woman” and a “dyke or a slut” was protected activity).
2

7

establish a causal connection to support a . . . retaliation claim by showing that the
protected activity was closely followed in time by the adverse [employment] action.”
(internal quotation marks omitted)). Defendants have rebutted the presumption of
retaliation by articulating two legitimate, non-retaliatory reasons for the adverse
employment action: Baez’s allegedly poor management of an employee at the Bal
Harbor store, and problems with the opening of the Madison Avenue store in New
York City. Accordingly, Baez must counter this proof with evidence that retaliation
was the “but-for” cause of her termination.
The Second Circuit recently explained that but-for causation “does not
require proof that retaliation was the only cause of the employer’s action, but only
that the adverse action would not have occurred in the absence of the retaliatory
motive.” Kwan, 737 F.3d at 845. Here, the fact that Zlotkin listed the “drama”
associated with plaintiff as one of the reasons for her termination, combined with
the close temporal proximity between Baez’s complaints about the rumor and her
termination, is sufficient to create a genuine dispute of material fact as to whether
Baez’s complaint was a but-for cause of her termination. See id. at 847 (“[A] plaintiff
may rely on evidence comprising her prima facie case, including temporal
proximity, together with other evidence such as inconsistent employer explanations,
to defeat summary judgment.”). Defendants’ argument that Baez does not know
whether Zlotkin was referring to the specific rumor about Baez showing her breasts
when he mentioned “too much drama” is disputed by plaintiff (and, in any event, is
a reasonable inference a juror could draw) and therefore does not eliminate any

8

genuine dispute of material fact. Accordingly, defendants’ motion for summary
judgment on Baez’s Title VII and NYSHRL retaliation claims is denied.
2.

NYCHRL (Count IV)

Employment discrimination claims under the NYCHRL are to “be evaluated
separately from counterpart claims” brought under Title VII and the NYSHRL,

Kolenovic v. ABM Indus. Inc., 361 F. App’x 246, 248 (2d Cir. 2010), to effectuate the
statute’s “uniquely broad and remedial purposes,” Kaur v. N.Y.C. Health & Hosps.

Corp., 688 F. Supp. 2d 317, 339 (S.D.N.Y. 2010) (citations omitted). Instead, to
“prevail on a retaliation claim under NYCHRL, the plaintiff must show that she
took an action opposing her employer’s discrimination, and that, as a result, the
employer engaged in conduct that was reasonably likely to deter a person from
engaging in such action.” Wolf v. Time Warner, Inc., 548 F. App’x 693, 696 (2d Cir.
2013) (quoting Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 112
(2d Cir. 2013)). Although the “but for” causation standard does not apply to
retaliation claims under the NYCHRL, see Mihalik, 715 F.3d at 116, a plaintiff still
must establish that “there was a causal connection between his protected activity
and the employer’s subsequent action, and must show that a defendant’s legitimate
reason for his termination was pretextual or ‘motivated at least in part by an
impermissible motive,’” Weber v. City of New York, 973 F. Supp. 2d 227, 273
(E.D.N.Y. 2013) (quoting Brightman v. Prison Health Serv., Inc., 970 N.Y.S.2d 789,
792 (2d Dep’t 2013)).

9

Because defendants have failed to show that they are entitled to summary
judgment under Baez’s Title VII and NYSHRL retaliation claims, they are a fortiori
not entitled to summary judgment under the more expansive NYCHRL.
B.

NYCHRL Hostile Work Environment Claims (Counts III, V, VI)

Count III of Baez’s AC alleges discrimination in violation of the NYCHRL,
Count V brings a claim against D’Luzansky and Zlotkin for aiding and abetting a
NYCHRL violation, and Count VI alleges employer liability under the NYCHRL.
For the following reasons, defendants’ motion for summary judgment on these
claims is granted in part and denied in part.
1.

Legal Principles

The NYCHRL’s liberal construction lowers the standard for a hostile work
environment claim brought under its auspices. 3 Bermudez v. City of New York, 783
F. Supp. 2d 560, 579 (S.D.N.Y. 2011). All that is required to sustain a NYCHRL
hostile work environment claim is “unequal treatment based on gender.” Williams

v. N.Y.C. Hous. Auth., 872 N.Y.S.2d 27, 40 (1st Dep’t 2009). Questions of “severity”
or “pervasiveness” go to damages only—not to liability. Id. at 38. However, “the
NYCHRL, like Title VII and the NYSHRL, is still not a general civility code, and
petty slights and trivial inconveniences are not actionable.” Davis–Bell v. Columbia
Count III of the AC cites to Section 8-107(1)(a) of the N.Y.C. Administration Code, which makes it
“an unlawful discriminatory practice . . . [f]or an employer or an employee or agent thereof, because
of the . . . gender . . . of any person, to . . . discharge from employment such person or to discriminate
against such person in compensation or in terms, conditions or privileges of employment.” N.Y.C.
Admin. Code § 8-107(1)(a). It is unclear from the AC whether Baez is bringing a discrimination or a
hostile work environment claim under the NYCHRL, as both types of claims are governed by Section
8-107(1)(a). See Sotomayor v. City of New York, 862 F. Supp. 2d 226, 261 (E.D.N.Y. 2012) (“Hostile
work environment claims are analyzed under the same provision of the NYCHRL as discrimination
claims.”). However, in her opposition to the motion for summary judgment, Baez only makes
arguments regarding a hostile work environment claim. (Opp’n Mem. 12-15, ECF No. 59.)
Accordingly, the Court interprets the AC to bring a hostile work environment claim.
3

10

Univ., 851 F. Supp. 2d 650, 671 (S.D.N.Y. 2012) (internal quotation marks omitted).
And a plaintiff must establish that she suffered a hostile work environment because
of her gender. See, e.g., Margherita v. FedEx Express, 511 F. App’x 71, 72 (2d Cir.
2013).
Individual employees may be held directly liable under the NYCHRL “if they
actually participated in the conduct giving rise to the discrimination claim.” Dillon

v. Ned Mgmt., Inc., 85 F. Supp. 3d 639, 658 (E.D.N.Y. 2015) (citation omitted). “In
order to hold an individual defendant liable for creating a hostile work environment
under NYCHRL, evidence must show that the claim relates directly to the conduct
and behavior of the individual.” Id. Further, Section 8-107(6) of NYCHRL provides
for aider and abettor liability. 4 Under this liability, “supervisors who failed to
investigate or take appropriate remedial measures despite being informed about the
existence of alleged discriminatory conduct” may be held liable. Morgan v. NYS

Att’y Gen.’s Office, No. 11 Civ. 9389, 2013 WL 491525, at *13 (S.D.N.Y. Feb. 8,
2013). To establish aider and abettor liability, liability “must first be established as
to the employer.” Dillon, 85 F. Supp. 3d at 658 (quoting Sowemimo v. D.A.O.R. Sec.,

Inc., 43 F. Supp. 2d 477, 490-91 (S.D.N.Y. 1999)). “Although no bright line rule has
been enunciated explaining how direct liability for the creation of a hostile work
environment differs from aiding and abetting the creation of such a climate, case

Count V of Baez’s inartfully pleaded AC cites to Section 8-107(19) of the N.Y.C. Administrative
Code, even though it alleges aiding and abetting liability. Section 8-107(19) provides that it is
unlawful “for any person to coerce, intimidate, threaten or interfere with . . . any person in the
exercise or enjoyment of . . . any right granted or protected pursuant to [Section 8-107].” N.Y.C.
Admin. Code § 8-107(19). The parties interpret Count V as alleging a cause of action for aiding and
abetting liability under Section 8-107(6) of the NYCHRL, so the Court will do the same.
4

11

law suggests that plaintiffs may bring both types of claims against individual
defendants who fail to investigate or take remedial action in the face of a
discrimination complaint.” Id. at 659.
The NYCHRL imposes liability on the employer in three instances: “(1) where
the offending employee ‘exercised managerial or supervisory responsibility’ . . . ; (2)
where the employer knew of the offending employee’s unlawful discriminatory
conduct and acquiesced in it or failed to take ‘immediate and appropriate corrective
action’; and (3) where the employer ‘should have known’ of the offending employee’s
unlawful discriminatory conduct yet ‘failed to exercise reasonable diligence to
prevent [it].’” Zakrzewska v. New Sch., 928 N.E.2d 1035, 1039 (N.Y. 2010) (citing
N.Y.C. Admin. Code § 8-107(13)).
2.

Analysis

Baez argues that she suffered from a hostile work environment because her
coworkers spread a rumor that she went bra-less to a meeting with Zlotkin, (Defs.’
56.1 Statement ¶¶ 55-59), and because D’Luzansky did not sufficiently investigate,
or sufficiently discipline employees for, the rumor, (Baez Dep. 1 at 66:9-20). The
Court does not view these sorts of issues as within the heartland of what federal,
state, and city anti-discrimination statutes are meant to address. However, even “a
single comment that objectifies women . . . made in circumstances where that
comment would, for example, signal views about the role of women in the workplace
[may] be actionable.” Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d 27, 41 n.30 (1st
Dep’t 2009). Given that the content of the rumor by nature involved Baez’s gender,
the low standard under the NYCHRL, and the apparent repetition of “drama” over
12

this incident, the Court cannot say that no reasonable jury could find that Baez
suffered from a hostile work environment.
There also is a dispute of fact as to whether D’Luzansky contributed to the
hostile work environment by failing to investigate the rumor sufficiently. According
to defendants, D’Luzansky adequately responded to Baez’s allegations by, inter alia,
giving Blynn a written warning. (Defs.’ 56.1 Statement ¶¶ 82-83, 87.) Baez,
however, argues that D’Luzansky refused to take appropriate remedial action. Baez
points to the January 16, 2014 email in which D’Luzansky wrote that she “[didn’t]
think there’s anything more than I need to be included in . . . . I don’t think
escalating to a written warning would be recommended, or necessary, at this time.”
(Goldberg Affirmation Ex. F.) Baez also argues that Blynn’s written warning was
insufficient because it concerned “insubordination that had been ongoing for a long
time,” rather than discipline specific to “spreading a rumor about [Baez’s] breasts
being shown to [her] boss.” (Baez Dep. 2 198:21-25, ECF No. 67-2.)
These disputes of fact are sufficient to overcome defendants’ motion for
summary judgment regarding AFUSA’s liability under Section 8-107(1) and, given
that D’Luzansky “exercised managerial or supervisory responsibility,” Zakrzewska,
928 N.E.2d at 1039, under Section 8-107(13). The Court also cannot say that no
reasonable jury would find D’Luzansky liable—directly or under an aider-andabettor theory—for the hostile work environment. No reasonable jury, however,
could find that Zlotkin directly participated in, or aided and abetted, any violation
of the NYCHRL. It is undisputed that, in an email to Zlotkin right after she learned

13

what people were saying about her, Baez did not even mention the rumor. (Defs.’
56.1 Statement ¶¶ 69-71.) Baez also testified that she and D’Luzansky flew to
Boston to discipline Blynn at Zlotkin’s direction. (Baez Dep. 2 at 183:17-184:5.)
Accordingly, defendants’ motion for summary judgment on Counts III, V, and VI is
granted as to Zlotkin and otherwise denied.
C.

Failure to Timely Pay Sales Commission (Count VII)

In Count VII of the AC, Baez brings a claim against AFUSA for failure to
timely pay her sales commission. In particular, she alleges that $5,000 of the
$10,000 she is owed by AFUSA has not been paid. (AC ¶ 80.) In response to
defendants’ argument that there is no genuine dispute of material fact that Baez is
not entitled to a sales commission under New York Labor Law § 191, Baez tries to
argue that she mistakenly used the word “commission,” and is in fact bringing a
breach of contract claim for AFUSA’s failure to pay her bonus. (Opp’n Mem. 24, 24
n.6.)
It is clear to the Court, however, that Baez’s cause of action was brought
pursuant to Section 191, and plaintiff is improperly attempting to amend her
complaint through her opposition briefs. See Wright v. Ernst & Young LLP, 152
F.3d 169, 178 (2d Cir. 1998). Most obviously, the second paragraph of the AC
explicitly states that Baez is asserting a claim against AFUSA “for unlawfully
withholding her sales commission . . . in contravention of New York Labor Law

Article 6, § 191-C.” (AC ¶ 2 (emphasis added).) Second, Count VII is labeled “Failure
to Timely Pay Sales Commission,” and nowhere in that count does Baez mention
breach of contract. (Id. ¶¶ 77-83.) Third, Count VII alleges that “[s]ales commission
14

is due within five days of being earned,” (id. ¶ 78), and Section 191-c specifically
states that sales representatives are to be paid their earned commissions “within
five business days after termination or within five business days after they become
due in the case of earned commissions not due when the contract is terminated,”
N.Y. Labor Law § 191-c(1). Fourth, Count VII alleges that Baez is “entitled to
double the amount unlawfully withheld and attorneys’ fees,” (AC ¶ 83), and a
principle who violates Section 191-c “shall be liable to the sales representative in a
civil action for double damages” and an award of reasonable attorney’s fees, N.Y.
Labor Law § 191-c(3). It is clear to the Court, therefore, that Baez brought a claim
for failure to timely pay a sales commission pursuant to Section 191, and any
arguments to the contrary are specious.
Baez does not dispute defendants’ contention that regional managers, like
plaintiff, are not entitled to commissions. (Defs.’ 56.1 Statement ¶ 106.) This
concession acknowledges that the statute applies only to independent contractors.

See Jin v. Metro. Life Ins. Co., 310 F.3d 84, 88 n.4 (2d Cir. 2002); see also DeLuca v.
AccessIT Grp., Inc., 695 F. Supp. 2d 54, 61 (S.D.N.Y. 2010). Further, even if Baez
was entitled to a commission, her claim appears to be based on an alleged oral
promise by Zlotkin that Baez would get $10,000 if she met her target for the last
quarter in 2013. (See Opp’n Mem. 25 (citing a case for the proposition that “oral
promises of non-discretionary bonuses are enforceable”).) Section 191-c, however,
covers breaches of written, not oral, contracts. DeLuca, 695 F. Supp. 2d at 61.
Zlotkin’s email to Baez on February 27, 2014 is not to the contrary. (Goldberg

15

Affirmation Ex. J, ECF No. 61-10.) That email, in which Zlotkin tells Baez that “we
will pay the bonus,” contains no details and is therefore insufficient to constitute a
contract in and of itself. Accordingly, defendants’ motion for summary judgment is
granted as to Count VII of Baez’s AC.
D.

Retaliatory Counterclaim (Count VIII)

In Count VIII, Baez argues that D’Luzansky’s Massachusetts state law
counterclaim against Baez for secretly recording a conversation with D’Luzansky
and Blynn was brought in retaliation for this lawsuit in violation of Title VII,
NYSHRL, and NYCHRL. (AC ¶¶ 86-89.)
As explained above, a retaliation claim is governed by the McDonnell Douglas
burden-shifting framework. See Malena v. Victoria’s Secret Direct, LLC, 886 F.
Supp. 2d 349, 362 (S.D.N.Y. 2012). Under this framework, the plaintiff bears the
initial burden of establishing a prima facie case of retaliation by showing 1)
participation in a protected activity; 2) defendant’s knowledge of the protected
activity; 3) an adverse employment action; and 4) a causal connection between the
protected activity and the adverse employment action. Kwan, 737 F.3d at 844.
Baez has established a prima facie case of retaliation: she engaged in
protected activity by filing this lawsuit and suffered an adverse action by having a
counterclaim filed against her shortly after she disclosed the recording. There is a
material dispute of fact, however, whether D’Luzansky has provided a legitimate,
non-retaliatory reason for filing the Massachusetts state law counterclaim. Baez
does not dispute that she recorded a meeting between her, D’Luzansky, and Blynn.
(Defs.’ 56.1 Statement ¶ 112.) She also does not dispute that she did not tell
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D’Luzansky or Blynn that she was recording. (Id. ¶ 113.) She does, however, argue
that her phone was out in the open, and the microphone and recording time on her
phone were visible to the meeting’s participants. (Pl.’s 56.1 Counterstatement ¶¶
113-114, ECF No. 60.) Because there is no violation of the relevant Massachusetts
statute “where the recording was not secret, that is, [where] it was made with the
parties’ consent or actual knowledge,” Mahoney v. DeNuzzio, No. 13 Civ. 11501,
2014 WL 347624, at *5 (D. Mass. Jan. 29, 2014), this dispute of fact precludes
summary judgment on Count VIII.
IV. CONCLUSION
For the reasons set forth above, defendants’ motion for summary judgment is
GRANTED in part and DENIED in part. Because none of Baez’s claims against
Zlotkin withstands summary judgment, the Clerk of Court is directed to terminate
him from the case.
SO ORDERED.
Dated:

New York, New York
January 5, 2017

_________________________________________
KATHERINE B. FORREST
United States District Judge

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