Welch v. Bill Cram, Inc. et al
DECISION AND ORDER granting in part and denying in part 16 Motion for Summary Judgment. Plaintiffs claim for gender discrimination under Title VII and the NYSHRL is dismissed. The remainder of Plaintiffs Title VII and State law claims may proceed. The Clerk of Court is directed to amend the caption so that defendant Stephen Rush is properly named as Leslie Stephen Rush." Signed by Hon. Michael A. Telesca on 8/25/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CHRISTOPHER L. WELCH,
DECISION and ORDER
-vsBILL CRAM, INC., STEPHEN RUSH, and
Christopher L. Welch (“Welch” or “Plaintiff”), represented by
counsel, instituted this action against
Bill Cram, Inc. (“the
Company”), Amy Cram (“Cram”), Stephen Rush1 (“Rush”) (collectively,
“Defendants”), pursuant to Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e, et seq. (“Title VII”), alleging claims of
discrimination based on sex and gender; retaliation; hostile work
environment; and quid pro quo sexual harassment. Plaintiff also
New York State Human Rights Law, N.Y. Exec. Law § 296 et seq.
(“NYSHRL”), as well as State law claims of assault and battery. The
Court has jurisdiction over this matter pursuant to 28 U.S.C.
Defendants have indicated that the correct name of defendant Stephen Rush
is Leslie Stephen Rush. The Clerk of Court is directed to amend the caption
dealership in Seneca Falls, New York, for nearly 50 years. Cram
assumed ownership of the Company in 2012, and is responsible for
interviewing and hiring new employees. Plaintiff was hired by Cram
to work at the Company as a Parts Clerk commencing on June 9, 2014.
Plaintiff was provided with, and signed, a copy of the Company’s
Harassment Policy at the time he was hired.
While employed at the Company, Plaintiff’s duties included
ordering, organizing, sorting, storing, retrieving, and stocking of
automotive parts for use on new and used vehicles; and performing
some local deliveries of automotive parts. Rush, the Parts Manager
at the Company, was Plaintiff’s supervisor on a day-to-day basis.
Company—Rush, Plaintiff, and non-party Chris Ritter (“Ritter”),
For approximately the first week and a half of his employment,
Plaintiff had no issues with Rush. One day, Rush became upset when
he could not find a part that he believed Plaintiff had misplaced.
Rush threw an oxygen sensor at Plaintiff, hitting him in the leg.
Plaintiff said, “That’s not right. . . You shouldn’t do that.”
(Deposition of Christopher L. Welch (“Welch Dep.”) (Dkt #19-3) at
100:7-9). Rush replied, “If you complain, I’ll see that you get
fired.”) (Id. at 100:12-13).
Soon after this incident, Rush began groping Plaintiff’s
buttocks multiple times every day, such as while walking up stairs.
(Welch Dep. at 102:2-6, 19-23; 103-104). Rush also would touch
Plaintiff’s shoulders “like [he] was giving [Plaintiff] a back
massage[.]” (Id. at 130). Rush would come up behind Plaintiff and
rub his genitals against Plaintiff’s buttocks and back. (Id. at
109:19-23, 110-111:1-10, 131:22-23—132:1-4). Plaintiff asked Rush
uncomfortable; Rush replied that if Plaintiff complained, Rush
would see to it that he was fired. (Id. at 111:11-23, 131:1-12). In
Plaintiff uncomfortable, Rush made comments of a sexual nature to
Plaintiff about female co-workers, customers, and vendors. (Id. at
108). For instance, Rush commented, “Wow, look at those boobs,” in
regards to a co-worker who was pregnant (Id. at 117:1-9, 15-23;
118:1-13); mentioned that a female co-worker had a “nice ass”;
said, in regards to a female customer, “I’d like to get a blowjob
from her, . . . she has nice lips”; and commented that Cram “has a
nice body for her age.” (Id. at 114:19-23—115:1-6, 120, 126). Rush
constantly referred to male employees at the Company as “assholes”
and “faggots” and was generally rude to them. (Id. at 104:9-23,
105-106). Rush “would always say if [Plaintiff] complained, [he]’d
get fired.” (Id. at 131:1-12).
complained about Rush’s behavior and comments, as well as Rush’s
threats to terminate him if he complained. Plaintiff requested to
be moved to another department so that he would not have to
interact further with Rush. (Welch Dep. at 141-42). Cram told
Plaintiff she would look into it and get back to him. (Id. at
The next day, July 3, 2014, Plaintiff observed Cram and Rush
having a conversation in hushed voices. About five minutes later,
Rush walked over to Plaintiff and said that Cram wanted to see him
in her office. (Welch Dep. at 152). With Rush present, Cram
informed Plaintiff that it was “not working out for [him]” and that
she was “going to have to let [him] go.” (Id. at 149-50). Plaintiff
Plaintiff filed his Complaint on June 29, 2015. The parties
unsuccessful. Defendants filed their Motion for Summary Judgment
(Dkt #16) on April 28, 2017. After obtaining a 30-day extension,
Plaintiff filed his opposition papers (Dkt #19) on June 28, 2017.
Defendants did not file a reply. The motion was submitted without
oral argument on July 12, 2017. For the reasons discussed herein,
Defendants’ Motion for Summary Judgment is denied in part and
granted in part.
A court “shall grant summary judgment” if the movant shows
that “there is no genuine dispute as to any material fact” and that
the movant “is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). “In determining whether summary judgment is appropriate,
[the Court] must resolve all ambiguities and draw all reasonable
inferences against the moving party.” Tolbert v. Smith, 790 F.3d
427, 434 (2d Cir. 2015) (citing Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986)). “On a motion for
summary judgment, the court ‘“cannot try issues of fact; it can
only determine whether there are issues to be tried.”’” Ramseur v.
Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989) (quoting
Donahue v. Windsor Locks Board of Fire Commissioners, 834 F.2d 54,
58 (2d Cir. 1987); further quotation and citations omitted). Thus,
the court “is not to weigh the evidence but is instead required to
view the evidence in the light most favorable to the party opposing
summary judgment, to draw all reasonable inferences in favor of
that party, and to eschew credibility assessments.” Amnesty Am. v.
Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2004) (quoting
Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996)).
Title VII Claims
Title VII prohibits employers from discriminating “against any
individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The
ordinarily inappropriate where an individual’s intent and state of
mind are implicated.’” Ramseur, 865 F.2d at 465 (quotation and
citations omitted). Employment discrimination cases necessarily
turn on the alleged discriminatory intent of the employer, and
employees rarely are able to produce direct evidence of their
employers’ discriminatory intent. See id. at 464–65 (“In assessing
termination, the court must be alert to the fact that ‘[e]mployers
are rarely so cooperative as to include a notation in the personnel
file’ that the firing is for a reason expressly forbidden by law.”)
(quotation and citations omitted; brackets in original). Thus, the
absence of direct or explicit evidence that a challenged personnel
action was motivated by an impermissible reason is not fatal to a
claim of discrimination under Title VII. Id. at 465. Rather, if a
plaintiff shows that the employer’s “proffered justification is
pretextual[,]” id., this is “itself sufficient to support an
Id. (citations omitted).
Claims Against the Individual Defendants
It is well settled in the Second Circuit that “Title VII does
not impose liability on individuals[.]” Lore v. City of Syracuse,
670 F.3d 127, 169 (2d Cir. 2012) (citations omitted). This is true
even if those individuals exercised “supervisory control” over the
Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir.
1995), abrogated on other grounds by Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742 (1998) (“Ellerth”). Here, Plaintiff indicates
in his Complaint that his Title VII causes of action are asserted
only against the Company and not against individual defendants Cram
Title VII Harassment Claims Against the Company
traditionally recognized two forms of sexual harassment: ‘quid pro
Mormol v. Costco Wholesale Corp., 364 F.3d 54, 57 (2d Cir. 2004)
(citation omitted), although these terms do not appear in the text
of Title VII, id. “Quid pro quo” describes “cases involving a
threat which is carried out[,]” Ellerth, 524 U.S. at 753, while
Quid Pro Quo Sexual Harassment
To make out a prima facie case of sexual harassment under a
quid pro quo theory against an employer, an employee must show
“that an ‘explicit . . . alteration[ ] in the terms or conditions
supervisor]’s sexual advances.” Schiano v. Quality Payroll Systems,
Inc., 445 F.3d 597, 603 (2d Cir. 2006) (quotation omitted; ellipsis
and first brackets in original). Generally speaking, a tangible
employment action “constitutes a significant change in employment
status, such as hiring, firing, failing to promote, reassignment
causing a significant change in benefits.” Schiano, 445 F.3d at 604
(quotations omitted). “Under the Guidelines established by the
Equal Employment Opportunity Commission . . . , quid pro quo
harassment occurs when ‘submission to or rejection of [unwelcome
Columbia Univ., 14 F.3d 773, 777 (2d Cir. 1994) (quoting 29 C.F.R.
§ 1604.11(a)(2) (1993); brackets in original). “[L]iability for
quid pro quo harassment is always imputed to the employer[.]” Id.
at 779 (citing Kotcher v. Rosa & Sullivan Appliance Center, Inc.,
957 F.2d 59, 62 (2d Cir. 1992)).
The Court finds that Plaintiff has stated a prima face case of
deposition to a number of instances of unwelcome physical contact
of a sexual nature by his direct supervisor, Rush. Plaintiff also
testified that his supervisor, Rush, explicitly made comments to
Plaintiff conditioning his continued employment on Plaintiff’s
Plaintiff testified that Rush groped his buttocks multiple times
every day, rubbed his genitals against Plaintiff’s buttocks and
occasions. When Plaintiff told Rush to stop engaging in these types
of behaviors, Rush replied that if Plaintiff complained about them,
Rush would have him fired. “[O]nce an employer conditions any terms
of employment upon the employee’s submitting to unwelcome sexual
advances, a quid pro quo claim is made out, regardless of whether
the employee (a) rejects the advances and suffers the consequences,
consequences.” Karibian, 14 F.3d at 777; see also id. at 778
(“Karibian stated that her work assignments, raises and promotions
depended on her continued responsiveness to Urban’s sexual demands.
In addition, Karibian claimed that Urban implicitly threatened to
fire her and to damage her career if she did not comply. If true,
Urban’s conduct would constitute quid pro quo harassment because he
made and threatened to make decisions affecting the terms and
conditions of Karibian’s employment based upon her submission to
his sexual advances.”).
Hostile Work Environment
“A plaintiff may establish a violation of Title VII by proving
that discrimination based on sex has created a hostile or abusive
work environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57,
66 (1986) (“Vinson”). “In order to survive summary judgment on a
claim of hostile work environment harassment, a plaintiff must
“sufficiently severe or pervasive to alter the conditions of the
victim’s employment.”’” Cruz v. Coach Stores, Inc., 202 F.3d 560,
570 (2d Cir. 2000) (quoting Harris v. Forklift Sys., Inc., 510 U.S.
17, 21 (1993) (quoting Vinson, 477 U.S. at 65, 67)), superseded by
statute on other grounds as stated by Jones v. N.Y. State Metro
D.D.S.O., 543 F. App’x 20 (2d Cir. 2013). In order to make this
showing, the plaintiff “must demonstrate either that a single
incident was extraordinarily severe, or that a series of incidents
were sufficiently continuous and concerted to have altered the
conditions of [his] working environment.” Alfano v. Costello, 294
F.3d 365, 374 (2d Cir. 2002) (internal quotation marks omitted).
“[A] plaintiff seeking to establish harassment under a hostile
environment theory must demonstrate some specific basis to hold the
employer liable for the misconduct of its employees.” Karibian, 14
F.3d at 779 (citing Kotcher, 957 F.2d at 62). Thus, “[e]ven if a
work environment is found to be abusive, . . . a plaintiff ‘must
environment should be imputed to the employer.’” Tomka, 66 F.3d at
1305 (quoting Kotcher, 957 F.2d at 63). The Second Circuit has held
that when a plaintiff’s supervisor is the alleged harasser, “an
employer will be liable if the supervisor uses his actual or
supervisor] was otherwise aided in accomplishing the harassment by
the existence of the agency relationship.” Karibian, 14 F.3d at 780
29 C.F.R. § 1604.11(c); Hirschfeld v. New Mexico Corr. Dep’t, 916
F.2d 572, 579 (10th Cir. 1990); other citations omitted).
“[W]hether an environment is ‘hostile’ or ‘abusive’ can be
“includ[ing] the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or
interferes with an employee’s work performance. . . [and] [t]he
effect on the employee’s psychological well-being. . .” Harris,
510 U.S. at 23.
Given the extremely short period of time in
question and the quantity of comments, touching, and other conduct
alleged, the Court finds that Plaintiff has created a genuine issue
of material fact as to whether he faced a hostile work environment.
(2d Cir. 2010) (“Assuming arguendo that no single one of the
egregious on its own, when taken together they do describe a work
inappropriately on women as sexual objects. The evidence does not
reveal a ‘mere offensive utterance,’ but a pattern in which female
employees such as Gorzynski could expect sexual remarks and other
harassment at any time.”) (citing Hicks v. Gates Rubber Co., 833
F.2d 1406, 1415-16 (10th Cir. 1987) (explaining that incidents of
sexual harassment directed at employees other than the plaintiff
can be used as proof of a hostile work environment claim because
one of the critical inquiries is the “general work atmosphere” as
Plaintiff has shown a basis for imputing Rush’s objectionable
supervisor. See Gorzynski, 596 F.3d at 103 (“When, as here, the
alleged harasser is in a supervisory position over the plaintiff,
employer.”) (citations omitted). Therefore, the Court finds that
Plaintiff’s hostile work environment claim may proceed.
Discrimination Based on Gender
Plaintiff asserts that he has made a prima facie case of sex
and gender discrimination claim under Title VII based on his
allegations that Rush treated male employees differently from
female employees; for instance, Rush continually made derogatory
comments about male employees such as “he’s a faggot” and “he’s an
asshole.” According to Plaintiff, when there were female employees
present, Rush would treat them “all nice and sweet,” but if there
were male employees, “[Rush] would just be rude to them or just
talk bad about them” to Plaintiff. (See Welch Dep. at 104-06).
As discussed in the preceding section, because Plaintiff has
stated a hostile work environment claim under Title VII, he has
already plausibly pleaded “a form of gender-based discrimination.”
Parra v. City of White Plains, 48 F. Supp.3d 542, 553 (S.D.N.Y.
2014) (quoting Bermudez v. City of N.Y., 783 F. Supp.2d 560, 585
(S.D.N.Y. 2011)); see also Meritor, 477 U.S. at 64 (“Without
question, when a supervisor sexually harasses a subordinate because
of the subordinate’s sex, that supervisor discriminate[s] on the
basis of sex.”). To state a “separate gender discrimination” claim,
however, Plaintiff must plead “‘a separate and distinct prima facie
case,’ alleging an adverse action beyond the creation of a hostile
work environment.” Id. (quoting Bethea v. City of N.Y., No. 11 CV
2347(SJ)(JMA), 2014 WL 2616897, at *6 (E.D.N.Y. June 12, 2014)).
“Whereas hostile work environment claims consider the ‘workplace
environment as a whole,’ disparate treatment claims require a
tangible, ‘discrete harm[ ] such as hiring or discharge.’” Id.
(quoting Raniola v. Bratton, 243 F.3d 610, 617 (2d Cir. 2001);
brackets in original).
Plaintiff alleges only one plausible adverse action beyond
the creation of a hostile work environment: his termination.
However, Plaintiff does not allege he was terminated because of his
gender. Moreover, his Complaint does not set forth a separate cause
of action alleging that he was fired due to his gender. Rather, the
First Cause of Action is described as one for “Discrimination Under
Title VII” and alleges that the Company “engaged in unlawful
employment practice . . . by retaliating against Plaintiff . . .
because of his opposition to the unlawful employment practices of
provides support for his retaliation claim, it does not plausibly
suggest disparate treatment. Parra, 48 F. Supp.3d at 553–54 (citing
Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007) (“The sine qua
non of a gender-based discriminatory action claim under title VII
is that the discrimination must be because of sex.”) (internal
quotation marks omitted)).
Accordingly, the Court finds that Plaintiff has failed to make
out a prima facie case of gender discrimination claim under Title
VII. E.g., Parra, 48 F. Supp.3d at 554 (citing Bethea, 2014 WL
2616897, at *6 (plaintiff plausibly stated hostile work environment
claim but could not state “separate and additional claim of gender
discrimination” based on same facts); Bermudez, 783 F. Supp.2d at
Retaliation Claims Against the Company
Title VII], a plaintiff must make four showings: that ‘(1) [he]
engaged in a protected activity; (2) [his] employer was aware of
this activity; (3) the employer took adverse employment action
against [him]; and (4) a causal connection exists between the
alleged adverse action and the protected activity.’” Summa v.
Hofstra Univ., 708 F.3d 115, 125 (2d Cir. 2013) (quoting Schiano v.
Quality Payroll Systems, Inc., 445 F.3d 597, 609 (2d Cir. 2006)).
“Once a prima facie case of retaliation is established, the burden
legitimate, non-discriminatory reason, then ‘[t]he burden shifts .
. . back to the plaintiff to establish, through either direct or
circumstantial evidence, that the employer’s action was, in fact,
motivated by discriminatory retaliation.’” Summa, 708 F.3d at 125
With regard to the first two factors–engaging in protected
activity of which the employer was aware, a plaintiff “need not
establish that the conduct [he] opposed was actually a violation of
Title VII, but only that [he] possessed a good faith, reasonable
belief that the underlying employment practice was unlawful under
that statute.” Galdieri–Ambrosini v. Nat’l Realty & Dev. Corp., 136
F.3d 276, 292 (2d Cir. 1998) (internal quotation marks omitted);
accord Summa, 708 F.3d at 126. The “notion of ‘opposition’ [to a
Title VII violation] includes activities such as ‘making complaints
to management, writing critical letters to customers, protesting
against discrimination by industry or by society in general, and
expressing support of co-workers who have filed formal charges.’”
Cruz, 202 F.3d at 566 (quoting Sumner v. United States Postal
Serv., 899 F.2d 203, 209 (2d Cir. 1990)).
The Court finds that Plaintiff has made out a prima facie case
of retaliation. As to the first element, Plaintiff engaged in
protected activity since he had a good faith reasonable belief that
Rush’s behavior was unlawful under Title VII, and he complained to
certainly was aware that Plaintiff was engaging in protected
activity since Plaintiff informed Cram, the sole officer of the
Company, about his direct supervisor’s allegedly unlawful conduct.
With regard to the third element, Plaintiff undoubtedly suffered an
adverse action by being terminated. As to the fourth element,
causation, the Second Circuit “[has] regularly held that ‘[t]he
causal connection needed for proof of a retaliation claim can be
established indirectly by showing that the protected activity was
closely followed in time by the adverse action.’” Summa, 708 F.3d
at 127-28 (holding that the “close temporal relationship [of four
months] is made even closer by the fact that the adverse action
occurred at the first actual opportunity to retaliate”) (quoting
Cifra v. General Elec. Co., 252 F.3d 205, 217 (2d Cir. 2001)
(internal quotation marks omitted; second brackets in original).
Here, Plaintiff’s termination occurred the day after he complained
to Cram about Rush’s objectionable behavior. The Court finds that
the presentation of this “temporal connection is enough, in and of
itself, . . . to permit a reasonable jury to find causation.” Id.
“Once a prima facie case is made, the burden of production
nondiscriminatory reason” for its actions.’” Johnson v. Palma, 931
F.2d 203, 207 (2d Cir. 1991) (quoting Taitt v. Chemical Bank, 849
original)). The Company asserts that the decision to discharge the
Plaintiff was based solely on his inability to perform the work he
was hired to do. According to Rush, during Plaintiff’s tenure at
the Company, numerous automotive parts for which Plaintiff was
responsible were missing from the correct corresponding bins on an
(“Defs’ Stmt”), ¶ 12 (citing Defendants’ Exhibit (“Defs’ Ex.”) B
(Dkt #16-4), Deposition of Leslie Rush (“Rush Dep.”) at 22:16-23;
Defs’ Ex. F (Dkt #16-8), Copies of Invoices).
“Because poor job
performance constitutes a legitimate, non-discriminatory reason,”
E.E.O.C. v. Town of Huntington, No. 05 CV 4559 DRH WDW, 2008 WL
361136, at *7 (E.D.N.Y. Feb. 8, 2008), the Court finds that the
Company has satisfied its burden of production. Id. (citing Gregory
dissatisfaction with even a qualified employee’s performance may,
of course, ultimately provide a legitimate, non-discriminatory
reason for the employer’s adverse action.”); Bellom v. Neiman
Marcus Grp., Inc., 975 F. Supp. 527, 532 (S.D.N.Y. 1997) (failure
to meet sales quota was a sufficient nondiscriminatory reason)).
non-discriminatory reason for its actions, the plaintiff then has
the burden of showing that the stated reason was pretextual, and
that, more likely than not, discrimination motivated the adverse
employment action. Raniola, 243 F.3d at 625. “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 Coll.,
521 F.3d 130, 138 (2d Cir. 2008) (quoting Cronin v. Aetna Life Ins.
Co., 46 F.3d 196, 203 (2d Cir. 1995); citation omitted); see also
Weber v. City of N.Y., 973 F. Supp.2d 227, 255–56 (E.D.N.Y. 2013)
(“To avoid summary judgment, Plaintiff must offer evidence from
which a reasonable jury could conclude by a preponderance of the
evidence that [prohibited] discrimination played a role in the
adverse actions taken against Plaintiff.”).
Plaintiff, the Court finds that there is a sufficient basis for a
reasonable trier of fact to doubt the Company’s proffered evidence
and ultimately find that the reason offered by the Company was
pretextual. As noted above, Plaintiff testified that every time he
asked Rush to stop making offensive comments or touching him, Rush
replied that if Plaintiff complained, Rush would have him fired.
Plaintiff testified that he saw Rush and Cram having a whispered
conversation approximately five minutes before he was called into
Cram’s office and fired. Significantly, Cram admitted at her
deposition that while the Company had a progressive discipline
policy, Plaintiff never received a verbal or written warning prior
to his termination. (See Deposition of Amy Cram, Part 2 (“Cram Dep.
2”) (Dkt #22) at 20). Thus, Cram did not apply the progressive
discipline policy to Plaintiff, which in itself is evidence of
disparate treatment. Cram testified that she did not recall what
she said to
admitted that she terminated Plaintiff solely on the basis of
Rush’s statements, on the day of Plaintiff’s firing, concerning
Plaintiff’s alleged performance issues. (See Deposition of Amy
Cram, Part 1 (“Cram Dep. 1”) (Dkt #16-3) at 21:4-8). According to
Rush, Plaintiff put parts away in the wrong locations on a daily
basis which caused delays and duplicative work for other employees
at the Company. (See Deposition of Leslie Stephen Rush (“Rush
Dep.”) (Dkt #16-4) at 18, 21-22). Plaintiff counters that Cram
responsibility was delivering auto parts to other stores and
vendors in the area, not the stocking of auto parts. (See Cram
Dep. 1 at 14). In any event, Rush admitted that he never issued
Plaintiff a warning about his allegedly poor performance, and never
Plaintiff. (Rush Dep. at 17). Cram also testified that she never
spoke to Plaintiff at any time other than his interview and his
firing. (Cram Dep. 1 at 19). Plaintiff testified that the Company’s
General Manager, Pat Pike (“Pike”), told him that he was doing a
great job, and that she wanted Plaintiff to take over Rush’s
position. (Welch Dep. at 80). Rush, on the other hand, testified
that he informed Pike about Plaintiff’s performance issues. (Rush
Dep. at 23:17-23).
Drawing all reasonable inferences in Plaintiff’s favor and
foregoing any credibility assessments, as it must, the Court finds
that Plaintiff’s evidence is “sufficient for a reasonable juror to
find a retaliatory motive in [his] termination.” Stathatos v. Gala
Res., LLC, No. 06 CIV. 13138 RLC, 2010 WL 2024967, at *11 (S.D.N.Y.
May 21, 2010) (citing James v. New York Racing Ass’n, 233 F.3d 149,
154 (2d Cir. 2000); other citation omitted). Plaintiff’s Title VII
retaliation claim may go forward.
The Faragher/Ellerth2 Affirmative Defense
affirmative defense as against Plaintiff’s hostile work environment
and harassment claims under Title VII. This defense consists of the
following two elements: that (1) “the employer exercised reasonable
care to prevent and correct promptly any [discriminatory] harassing
behavior,” and (2) “the plaintiff employee unreasonably failed to
provided by the employer or to avoid harm otherwise.” Faragher, 524
U.S. at 807; Ellerth, 524 U.S. at 765. “The employer may raise the
defense, however, only if one of two further elements is met:
either (1) the employee’s supervisor took no ‘tangible employment
action,’ which involves an official company act, against the
employee; or (2) any tangible employment action taken against the
harassment.” Ferraro v. Kellwood Co., 440 F.3d 96, 101 (2d Cir.
2006) (quoting Faragher, 524 U.S. at 808; Ellerth, 524 U.S. at
Here, however, the Company did take a tangible employment
action against Plaintiff—it terminated him. See Ellerth, 524 U.S.
See Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Ellerth, 524
U.S. at 765.
at 761 (“A tangible employment action constitutes a significant
change in employment status, such as . . . firing. . . .”).
Furthermore, as discussed above, Plaintiff has raised genuine
issues of material fact as to whether his termination was part of
his supervisor’s discriminatory harassment. Stated another way,
Plaintiff has presented evidence connecting Rush’s harassment to
Cram’s termination decision.
Moreover, contrary to Defendants’ suggestion, “the existence
of a sexual harassment policy and training alone does not satisfy
the employer’s burden under the first prong of the Ellerth/Faragher
defense because the employer not only must take reasonable care to
prevent sexually harassing behavior but also to correct promptly
any such behavior.” Pinkerton v. Colorado Dep’t of Transp., 563
F.3d 1052, 1062 (10th Cir. 2009) (citing Ellerth, 524 U.S. at 765;
Faragher, 524 U.S. at 807; Hurley v. Atl. City Police Dep’t, 174
F.3d 95, 118 (3d Cir. 1999)). Here, the Company did not “take
reasonable care . . . to correct promptly” the harassing behavior
by Rush about which Plaintiff complained. Instead, the Company
terminated Plaintiff the day after he voiced his concerns.
For all of these reasons, the Court finds that the Company
cannot avail itself of the Faragher/Ellerth defense.
State Law Claims
Hostile Work Environment and Retaliatory Discharge
Discrimination claims under the NYSHRL are evaluated using the
same analytical framework used in Title VII actions. E.g., Patane,
508 F.3d at 113 (citation omitted); Van Zant v. KLM Royal Dutch
Airlines, 80 F.3d 708, 715 (2d Cir. 1996) (“New York courts require
the same standard of proof for claims brought under the [NYSHRL] as
those brought under Title VII.”) (quotation omitted). In contrast
discrimination may be imposed on individuals. E.g., Mandell v.
County of Suffolk, 316 F.3d 368, 377 (2d Cir. 2003).
Because Plaintiff’s Title VII hostile work environment, quid
pro quo sexual harassment, and retaliation claims survive summary
withstand summary judgment and may proceed against the Company and
the individual defendants, Cram and Rush.
Aiding and Abetting
Plaintiff also asserts an “aiding and abetting” claim under
the NYSHRL against the individual defendants, Cram and Rush.
Section 296(6) of New York Executive Law (“§ 296(6)”) provides in
relevant part 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, or attempt
to do so.” N.Y. Exec. L. § 296(6).
According to the Second Circuit, liability under § 296(6) is
distinguishable from direct liability under N.Y. Exec. L. § 296(1),
in that a defendant need not be the employer, or hold authority to
hire or fire the plaintiff, in order to be found liable for aiding
and abetting the discriminatory practice. Tomka, 66 F.3d at 1317.
Thus, a defendant “who actually participates in the conduct giving
rise to a discrimination claim” may be personally liable under
§ 296(6). Id.
Defendants argue that Plaintiff’s § 296(6) claim fails as a
matter of law because, according to the Complaint’s allegations,
Rush was the sole perpetrator of the workplace harassment, and Cram
was the sole perpetrator of the retaliatory discharge. Defendants
argue that “[a]n individual cannot aid and abet his own alleged
discriminatory conduct.” Raneri v. McCarey, 712 F. Supp.2d 271, 282
(S.D.N.Y. 2010) (citation omitted).
However, “the law in this
Circuit seems clear that a defendant may be held liable for aiding
and abetting allegedly unlawful discrimination by her employer even
vicarious liability.” Conklin v. Cty. of Suffolk, 859 F. Supp.2d
415, 436 (E.D.N.Y. 2012); see also Johnson v. Cty. of Nassau, 82 F.
Supp.3d 533, 536 (E.D.N.Y. 2015) (“Regardless of whether other
plaintiff may succeed in a claim under the NYSHRL by showing the
employer entity’s having encouraged, condoned, or approved the
discriminatory conduct of a sole employee—the same discriminatory
Section 296(6).”) (quoting Lewis v. Triborough Bridge & Tunnel
Auth., No. 97 CIV. 0607 PKL, 2001 WL 46986, at *2 (S.D.N.Y. Jan.
18, 2001), aff’d, 31 F. App’x 746 (2d Cir. 2002); other citations
authority and “dismissed § 296(6) cases where there is only one
defendant perpetrating discriminatory conduct on the theory that a
party cannot aid and abet his own actions[,]” Lewis, 2001 WL 46986,
at *2 (citations omitted), here there are two defendants who each
factfinder could conclude that Rush aided and abetted Cram in
carrying out the retaliatory termination of Plaintiff’s employment.
And, a reasonable factfinder could conclude that Cram and the
Company condoned Rush’s discriminatory harassment by terminating
Plaintiff after he complained about it. Therefore, the Court will
allow Plaintiff’s § 296(6) claims to proceed as to Cram and Rush.
assault and battery as against Rush.
Statute of Limitations
The applicable statute of limitations period for intentional
torts such as assault and battery is one year. See N.Y. Civ. Prac.
L. & R. § 215(3); Friedman v. Gallinelli, 659 N.Y.S.2d 317, 318
(2d Dept. 1997). Plaintiff filed his Complaint on June 29, 2015.
Accordingly, with regard to Plaintiff’s causes of action based on
assault and battery, any and all incidents occurring prior to
June 29, 2014, are time-barred by the statute of limitations and
cannot support a recovery. Since Plaintiff was terminated on
July 3, 2014, the only incidents that can support a recovery must
have occurred during the five-day period from June 29th to July 3rd.
“New York law does not make intent to cause physical injury an
element of the torts of assault and battery.” Rivera v. Puerto
Rican Home Attendants Servs., Inc., 930 F. Supp. 124, 133 (S.D.N.Y.
1996) (citing Zgraggen v. Wilsey, 606 N.Y.S.2d 444, 445 (3d Dept.
1994); other citations omitted). ““To prove battery, the required
intent is merely that the defendant intentionally made bodily
contact and that the intended contact was itself offensive or
without consent.” Id. (citations omitted).
The Complaint here states a claim for battery as defined under
New York State law. Specifically, Plaintiff alleges that Rush
spanked him on the buttocks on July 1, 2014. (Compl., ¶ 37).
Plaintiff clearly has alleged that Rush “deliberately touched [him]
and that the intended physical contact was offensive and unwelcome.
. . .” Id. (citing O’Reilly v. Executone of Albany, Inc., 503
N.Y.S.2d 185, 186 (3d Dept. 1986) (former employee’s complaint
alleging sexual harassment, including touching in a sexual manner,
was sufficient to state cause of action for battery)).
“Under New York law, ‘[a]n “assault” is an intentional placing
contact.’” Girden v. Sandals Int’l, 262 F.3d 195, 203 (2d Cir.
2001) (quoting United Nat’l Ins. Co. v. Waterfront N.Y. Realty
Corp., 994 F.2d 105, 108 (2d Cir. 1993)). “[T]he intent requisite
to an assault under New York law is the intent either to inflict
personal injury or to arouse apprehension of harmful or offensive
bodily contact.” Rivera, 930 F. Supp. at 133 (citations omitted;
emphasis in original). Plaintiff has adequately alleged that Rush,
offensive contact, and did actually make offensive contact with
See Masters v. Becker, 254 N.Y.S.2d 633, 635
(2d Dep’t 1964) (“A plaintiff in an action to recover damages for
an assault founded on bodily contact must prove only that there was
bodily contact; that such contact was offensive; and that the
defendant intended to make the contact.”); see also Wahlstrom v.
Metro-N. Commuter R. Co., 89 F. Supp.2d 506, 528–29 (S.D.N.Y. 2000)
(“[P]laintiff alleges that Chapman grabbed her from behind, put her
in a bear hug, grabbed and squeezed her buttock, and slapped it
Summary Judgment (Dkt #16) is denied in part and granted in part.
Specifically, Plaintiff’s claim for gender discrimination under
Title VII and the NYSHRL is dismissed. The remainder of Plaintiff’s
Title VII and State law claims may proceed.
The Clerk of Court is directed to amend the caption so that
defendant Stephen Rush is properly named as “Leslie Stephen Rush.”
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
August 25, 2017
Rochester, New York
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