Theater Not Strictly Liable for Sexual Harassment by Co-Worker; Masturbation in Plaintiff’s Presence Did Not Constitute Assault

Recently, in Cajamarca v. Regal Entertainment Group, the New York Supreme Court (NY County) dismissed plaintiff’s sexual harassment and related claims arising from the alleged conduct of her co-worker (Gadsden).

In this “pure” hostile work environment case (i.e., one in which plaintiff did not suffer a “tangible employment action”), plaintiff alleged that shortly after Gadsden transferred to plaintiff’s theater, he “immediately began commenting on her looks and body and asking her to go out with him, and later began to harass her with overtly sexual comments and gestures”.

She also alleges that the harassment culminated in an incident in which Gadsden

came in and sat down next to her, and kissed her. He then, according to plaintiff, got up, walked four or five feet away and, standing against the wall, pulled down his pants, exposed his penis and started stroking his penis and making salacious comments to her.

The Eastern District of New York previously dismissed her federal claims.

Vicarious Liability

Initially the court held that, even though defendants did not dispute that Gadsden’s conduct (if proven) could be considered sexual harassment, Regal was not responsible for his conduct.  

Under the New York City Human Rights Law’s (NYCHRL) vicarious liability provision (NYC Admin. Code § 8-107(13)), employers are strictly liable for the acts of managers and supervisors.  Therefore, “critical to determining whether Regal can be held strictly liable for Gadsden’s conduct is whether Gadsden exercised managerial or supervisory responsibility.”

The court noted that “the standard for determining, under the NYCHRL, who should be considered a supervisor is not well settled”, but declined to impose the U.S. Supreme Court’s more restrictive definition, in Vance v. Ball State University, of “supervisor” under federal law, which was “not binding in light of the remedial purposes of” the NYCHRL.

Rather, under the NYCHRL, a “supervisor” whose conduct subjects the employer to strict liability is one who “has authority to direct the employee’s daily work activities”.

Even under this broader standard, Gadsden was not plaintiff’s supervisor.  The court pointed to affidavits from Gadsden, describing his daily activities and his work relationship with plaintiff, and from Regal’s Human Resources Manager Jennifer Jones.

In his affidavit, Gadsden

attests that he wore the same uniform as Floor Staff employees [including plaintiff], that no employee reported to him, and that he had no authority to hire, fire, or schedule any employee, or discipline or otherwise instruct an employee except at the direct request of a manager. He further attests that, because he primarily worked as an usher, and plaintiff primarily worked as a box office cashier, he had few work-related interactions with her, although he socialized with her on occasion. On rare occasions under instructions from a manager, he would ask plaintiff to help with a particular task, but this was “abnormal,” because they usually worked in geographically different locations in the theater and their job functions and activities did not overlap.

In her affidavit, Human Resources Manger Jones

explains that members of the Floor Staff are never considered part of management, and employees in Shift Lead or Senior Cast Member positions have no supervisory authority or responsibilities. She attests, based on a review of time sheets of both plaintiff and Gadsden, that plaintiff worked most of her time as a box office cashier, where she would have been closely supervised by theater managers and not by any Floor Staff, including Shift Leads or Senior Cast Members. She also attests that Gadsden worked primarily as an usher, had no authority to hire, fire, schedule, discipline, suspend, layoff, recall or assign other employees, did not work with plaintiff on more than half the days of the time period from March through December 2010, and could not have supervised plaintiff during the time that she worked in the box office.

In opposition, plaintiff offered no evidence to refute these submissions, and “the sole evidence supporting plaintiff’s argument that Gadsden was her supervisor is [plaintiff’s] deposition testimony[] that she would take a break or clean if Gadsden told her to.” This, in light of defendant’s “additional, undisputed evidence, is insufficient to raise a material triable issue of fact.”

Aiding and Abetting

The court also dismissed plaintiff’s aiding and abetting claim against Gadsden, reasoning that “[b]ecause plaintiff’s underlying discrimination claims against Regal have been dismissed, plaintiff’s claim against Gadsden as an aider and abettor of such alleged discriminatory conduct fails as a matter of law.” This is because “individuals cannot be held liable … for aiding and abetting their own violations of the Human Rights Law.”

Interference With Protected Rights

Next, the court dismissed plaintiff’s claim for interference with her protected rights.  City Human Rights Law § 8-107(19) makes it an

unlawful discriminatory practice for any person to coerce, intimidate, threaten or interfere with, or attempt to coerce, intimidate, threaten or interfere with, any person in the exercise or enjoyment of, or on account of his or her having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected pursuant to this section.

“A claim of interference requires the plaintiff to allege that individuals on behalf of the entity took action to prevent the claimant from obtaining a protected right.”

Plaintiff alleged that Gadsden threatened her by telling her that he had been in the Army and that she “had no idea what [he] could do to her.”  Plaintiff, however, presented no evidence to support her claim.  Notwithstanding this lack of evidence, the court still dismissed her claim:

[E]ven if Gadsden made a threat to plaintiff during the October telephone call, it appears that this conversation chiefly concerned plaintiff’s demand for the return of the outstanding loan, and did not constitute an interference with a protected right under the NYCHRL. Nor, in fact, did it prevent her from exercising her right to make complaints about Gadsden and other
employees at the theater.

Therefore, the court dismissed this claim as well.

Assault

Finally, the court dismissed plaintiff’s assault claim against Gadsden.  In order to recover on a claim for assault, a plaintiff

must show that another person made an intentional attempt, displayed by violence or threatening gesture, to do injury to, or commit a battery upon, his or her person. While [a]n action for an assault need not involve physical injury, but only a grievous affront or threat to the person of the plaintiff, an assault claim requires proof that there was conduct that placed plaintiff in imminent apprehension of harmful or offensive contact.

Plaintiff alleges that Gadsden committed assault by sitting next to her and kissing her and thereafter getting up, walking away, pulling his pants down, exposing his penis, and masturbating.

Even assuming there was a factual dispute as to what happened,

plaintiff does not allege or prove that she was put in imminent apprehension of harmful contact. As she testified, the incident happened fast and Gadsden left the room immediately after he put his pants on. Moreover, as was recently held, in a comparable factual setting, conclusory allegations that defendant’s employee intentionally placed [plaintiff] in apprehension of imminent offensive contact by masturbating next to her, are insufficient to state a cause of action for assault.

Plaintiff did not cite to, and the court was unable to locate, any cases “imposing liability for an assault solely based on the act of masturbation performed in front of another person.”

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