Opinion
00-CV-6722 (ILG)
July 12, 2001
MEMORANDUM ORDER
SUMMARY
Plaintiff Linda Garone brings this employment discrimination action pursuant to those provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (a)(1), 2000e-3(a), that proscribe a hostile work environment and retaliation; the New York State Human Rights Law, N.Y. Exec. Law § 296 ("NYSHRL"); and the New York City Human Rights Law, N.Y. City Admin. Code §§ 8-107 ("NYCHRL"). Individual defendant Cosmo DiMarco moves to dismiss Garone's second and third causes of action for gender discrimination, and fifth and sixth causes of action for retaliation pursuant to Fed.R.Civ.P. 12(b)(6). DiMarco also alleges that Garone failed to adequately perform a pre-filing investigation of her claims against him and thus seeks fees and costs under Fed.R.Civ.P. 11. For the reasons set forth below, defendant's motion to dismiss is granted, and his motion for sanctions is denied.
BACKGROUND
Garone began working for the United Parcel Service Inc. ("UPS") in November 1993 as an Office Management Specialist. (Compl. ¶ 18) To summarize, Garone alleges that she was subjected to a hostile work environment created in part by co-defendants Stan Scigowski's and Thomas Dullahan's sexually harassing and derogatory remarks, and suffered retaliation for complaining to various UPS supervisors and managers about such remarks. (Id. ¶¶ 21, 25-26) Defendant Scigowski was Garone's supervisor in 1996 and 1997 and called her and other female employees in her work area "the Brooklyn Bimbettes" and "the Office Bitches." (Id. ¶ 21) Garone complained about Scigowski's behavior to defendant William Burgess, a UPS Business Manager, who allegedly replied, "Keep quiet, otherwise they will say you are a problem." (Id. ¶ 22) Garone further alleges that she was denied the opportunity to become an "On-Car Supervisor" because she was female, and that her complaints to Burgess and defendant Thomas McNamara, another UPS manager, about the denial were met again by the comment, "Keep quiet, otherwise they will say you are a problem." (Id. ¶¶ 23-24) In September 1997, Garone's new supervisor, defendant Dullahan, made a series of comments to Garone including, "Hey baby, wear skirts so we can see your legs," and "[you] need a man." (Id. ¶ 25) Garone directly complained to Dullahan and requested him to stop, to no avail. (Id. ¶ 26) Garone again complained in October 1998, this time to defendant Bruce Pace, Division Manager, and he transferred her to another department.
Against this background, Garone's sole mention of DiMarco in her 62 paragraph Complaint is that "[i]n January 1999, DiMarco, another supervisor, [said to] Plaintiff, `I had better watch what I say in front of you. You might start screaming sexual harassment. . . .'" (Id. ¶ 29(a)) Garone's Complaint documents subsequent acts of retaliation and harassment by other co-defendants, and alleges that because of these acts, she was constructively discharged in April 1999. (Id. ¶¶ 29(b) — 32) Accordingly, Garone brought this employment discrimination action against UPS, DiMarco, and seven other UPS employees.
DISCUSSION
DiMarco moves to dismiss the Complaint pursuant to Fed.R.Civ.P. 12 (b)(6) "for failure to state a claim upon which relief can be granted," arguing that this one alleged statement does not amount to actionable sexual harassment; that Garone fails to allege facts sufficient to maintain a retaliation claim; that he cannot be liable as an individual because he is not subject to suit under Patrowich v. Chemical Bank, 63 N.Y.2d 541 (1984); and because he did not "aid and abet" the other defendants' discrimination. A court must, in deciding such a motion, accept the averments of the complaint as true and construe all reasonable inferences in favor of the nonmoving party. See Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995). Thus, a complaint should be dismissed on a motion under Rule 12(b)(6) only if"it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
I. Hostile Work Environment
Since New York courts generally look to federal law in adjudicating discrimination claims under the NYSHRL and the NYCHRL see Reed v. A.W. Lawrence Co., 95 F.3d 1170, 1177 (2d Cir. 1996); Ferrante v. American Lung Assoc., 90 N.Y.2d 623, 665 N.Y.S.2d 25, 28 (1997), Garone's claims are evaluated under the same standards as a Title VII claim. A hostile work environment is one "permeated with `discriminatory intimidation, ridicule, and insult'" which is "`sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Savs. Bank v. Vinson, 477 U.S. 57, 65-67 (1986)).
DiMarco contends that this one comment attributed to him is so not severe or pervasive as to create a hostile or abusive environment underHarris or Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998). Garone insists that DiMarco's comment considered against the totality of the circumstances reveal that DiMarco was complacent about the harassment and therefore is liable for perpetuating a hostile work environment. InHarris, the Court announced that the district courts should look at the totality of the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance," to determine whether an environment is hostile or abusive. 510 U.S. at 23. The totality of the circumstances inquiry is inapplicable here. The totality of circumstances inquiry is relevant insofar as the question before a court is the liability of an employer because the Harris court was interpreting 42 U.S.C. § 2000e-2 (a)(1) which creates employer liability for discrimination. The issue before this court is the liability of an employee in his individual capacity under New York State and New York City law. Garone attempts to transform the innocuous into the sinister by arguing that DiMarco is liable for his "complacency" and "perpetuation of harassment" based on the acts of UPS and the other individual defendants.
The court agrees with DiMarco that his isolated comment does not create an actionable hostile work environment claim. DiMarco's statement that, "I had better watch what I say in front of you. You might start screaming sexual harassment," is arguably, not even an offensive utterance that altered the conditions of Garone's employment. In Oncale v. Sundowner Offshore Services. Inc., 523 U.S. 75, 82 (1998), the Court advised the lower courts to be cognizant of the realities of human interaction: "Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing . . . and conduct which a reasonable person in the plaintiffs position would find severely hostile or abusive." That observation is exquisitely applicable here and DiMarco's motion to dismiss Garone's second and third causes of action for gender discrimination is granted.
II. Retaliation
The standard of proof for retaliation claims brought under Title VII, the NYSHRL, and the NYCHRL require a plaintiff to present a prima facie case by establishing the following elements: (1) she engaged in conduct protected by the NYSHRL and NYCHRL known to the defendant; (2) she suffered an adverse action subsequent to such activity; and (3) there was a causal link between the protected conduct and the adverse action. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 563 n. 1 (2d Cir. 2000). DiMarco first argues that Garone's retaliation claims must be dismissed because she has failed to allege whether he knew about her participation in a protected activity, that is, her complaints to Burgess, Dullahan, and Pace. Despite DiMarco's argument, it is plain from his statement itself that he knew of Garone's complaints.
Next, DiMarco contends that Garone has not alleged that she suffered an adverse employment action. A plaintiff sustains an adverse employment action if she endures a "materially adverse change" in the terms and conditions of employment. See Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 446 (2d Cir. 1999) (relying on Crady v. Liberty Nat'l Bank and Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)). "A materially adverse change might be indicated by a 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." Crady, 993 F.2d at 136. It is difficult to imagine that DiMarco's isolated comment created a material adverse change in Garone's terms and conditions of employment. Garone unavailingly argues that her suffering of "a further litany of harassment and discrimination" by other defendants, and her constructive discharge as alleged in paragraph 32 of her Complaint also satisfy the "adverse employment action" element of the retaliation claim. Thus, Garone has failed to allege the second element of a retaliation claim.
Constructive discharge can be an adverse employment action attributable to the employer. See e.g., Richardson v. New York, No. 94-CV-1065, 1997 U.S. Dist. LEXIS 20719 at ** 21-22 (N.D.N.Y. Dec. 22, 1997), aff'd in part, vacated in part, 180 F.3d 426 (2d Cir. 1999).
DiMarco lastly argues that Garone has failed to plead sufficient facts to establish a causal connection between the protected activity and the adverse employment action. Even if DiMarco's one comment were deemed to be an adverse employment action, the temporal proximity between Garone's October 1998 complaint to Pace and DiMarco's January 1999 comment upon which she relies does not satisfy the causation prong. Evidence of temporal proximity alone, questionably applicable here, is insufficient as a matter of law to prove the causal connection element of a retaliation claim. See Griffin v. Ambika Corp., 103 F. Supp.2d 297, 312 (S.D.N.Y. 2000). Accordingly, DiMarco's motion to dismiss Garone's fifth and sixth causes of action for retaliation is granted.
III. Individual Liability
In her opposition to DiMarco's motion, Garone seeks to hold him individually liable as an aider and abetter of unlawful discriminatory practices under the NYSHRL which states, "[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 to attempt to do so," N Y Exec. Law § 296(6), and the similarly drafted NYCHRL. See N.Y.C. Admin. Code § 8-107(6). DiMarco urges the court to dismiss Garone's complaint based on Trovato v. Air Express Int'l, 655 N.Y.S.2d 656 (2d Dep't 1997), in which the court limited individual liability under the NYSHRL for aiding or abetting to employee-owners or employees with specific authority to make personnel decisions. See id. at 657 ("We reject the plaintiffs' contention that the individual defendants could be held liable as aiders and abettors pursuant to Executive Law § 296(6). . . . To find a coemployee liable as an aider and abettor would ignore the statutory and legal authority limiting the parties who may be sued for employment discrimination. . . ."). Prior to Trovato, the Second Circuit in Tomka v. Seiler Corp., 66 F.3d 1295, 1317, held that any individual, regardless of their status within the workplace, may be liable for aiding and abetting discriminatory conduct prohibited by the NYSHRL if such individuals "actively participate[d] in the conduct giving rise to a discrimination claim." The Tomka court suggested that the use of "any person" in the text of § 296(6) was incompatible with limiting aiding and abetting liability to employee-owners and employees with authority over personnel decisions. See id.
Since Trovato, the Appellate Division, Second Department of the Supreme Court of New York has qualified its previous holding,
the broad language in [Trovato] should not be read to rule out a cause of action pursuant to . . . § 296(6) against a coemployee who is alleged to have actively aided and abetted the employer in acts prohibited under [the NYSHRL]. . . . In citing cases which stand for the rule that a party may state a cause of action for aiding and abetting under . . . § 296(6) (see, [Tomka] . . .), this Court . . . recognized that there can be factual circumstances which support the `aiding and abetting' theory.Murphy v. ERA United Realty, 674 N.Y.S.2d 415, 417-18 (2d Dep't 1998). Other New York courts have maintained the position in Trovato, see Foley v. Mobile Chem, Co., 626 N.Y.S.2d 908, 909 (4th Dep't 1995), and the disagreement among the courts as to who may be individually liable for aiding and abetting has been noted in several cases. See, e.g., Lewis v. Triborough Bridge Tunnel Auth., 77 F. Supp.2d 376, 380 n. 6 (S.D.N.Y. 1999).
Under either Trovato or Tomka, DiMarco cannot be found individually liable. Trovato is not applicable because there are no allegations in the Complaint that DiMarco had any ownership interest in UPS or otherwise had authority to make personnel decisions about her. Tomka is similarly inapplicable because DiMarco's one isolated comment can hardly be regarded as "active participation" in the alleged discriminatory conduct of others. Thus, DiMarco's motion to dismiss must be granted for the additional reason that he may not be held individually liable under New York State and New York City law.
IV. Rule 11 Sanctions
Finally, DiMarco requests attorney's fees, costs, and disbursements under Fed.R.Civ.P. 11(c) from Garone for her failure to investigate whether there was a reasonable basis for her claim against him. Rule 11, which is designed to curb abusive litigation and deter baseless filings.see Business Guides, Inc. v. Chromatic Communications Enters., Inc., 498 U.S. 533, 552 (1991), contains a twenty-one-day "safe harbor" period in which the party may withdraw any frivolous or legal contentions. See Fed.R.Civ.P. 11(c)(1)(A); Hadges v. Yonkers Racing Corp., 48 F.3d 1320, 1327-28 (2d Cir. 1995). Under the Rule, litigants seeking sanctions must file the motion "separately from other motions or requests," Fed.R.Civ.P. 11(c)(1)(A), and must not file the motion with the court until they have afforded their adversary the twenty-one-day period in which to withdraw or modify his submissions. See Bowler v. U.S. Immigration Naturalization Serv., 901 F. Supp. 597, 604 (S.D.N.Y. 1995) (declining to impose sanctions under Rule 11(c)(1)(A) where the party was not afforded the twenty-one day safe harbor period). DiMarco has not complied with the procedural requirements of the safe-harbor provision and the motion is therefore denied.
CONCLUSION
For the foregoing reasons, DiMarco's motion to dismiss is granted and his motion for Rule 11 sanctions is denied.
SO ORDERED.