Court Grants Restaurant Co-Workers Summary Judgment on Sexual Harassment (Hostile Work Environment) Claims

Employment discrimination cases – particularly those involving allegations of harassment or a hostile work environment – are often not suitable for resolution as a matter of law (or “summary judgment”), since they frequently turn on factual disputes more appropriately resolved by a jury rather than a judge.

Some cases, however, are suitable for disposition as a matter of law because the facts so overwhelmingly favor one side. One example of this is D’Annunzio v. Ayken, Inc. d/b/a Ayhan’s Fish Kebab Restaurant et al., 11-CV-3303. (decided June 10, 2014), in which a Brooklyn federal court granted plaintiffs’ motion for summary judgment on their sexual harassment claims.


D’Annunzio’s facts read like the “what not to do” portion of a sexual harassment training session/handbook.

For example, one plaintiff, Lauren D’Annunzio, alleged that she was “violently and sexually assaulted” by her co-worker, Juan Pablo Orellano, in the basement of her employer. She and two other plaintiffs, her sisters, provided “overwhelming evidence of further harassment they encountered”, including that other employees “made unwanted sexual comments and vulgar sexual motions toward the Plaintiffs; slapped Plaintiffs’ buttocks; exposed Plaintiffs’ bras; and touched their breasts.”

Furthermore, “[w]hile this pervasive abuse was occurring, Ayhan’s Fish Kebab Restaurant took no meaningful corrective action.”

Sexual Harassment

In granting summary judgment to plaintiffs on their Title VII hostile work environment claims, the court observed:

Plaintiffs submit that the harassment is sufficiently documented to justify summary judgment, while Defendants argue that the harassment was not pervasive enough to withstand it. Although the Defendants attempt to create a factual dispute as to the extent of harassment and Ayken’s liability for it, the record defeats them. While … hostile work environment claims are especially well-suited for jury determination, in this case the outrageous actions of the Defendant and its employees were simply too gross to ignore.

The Defendants move for summary judgment by arguing that Plaintiffs failed to create a genuine issue of material fact as to whether the alleged conduct was severe or pervasive. This argument is indefensible. The record is replete with specific facts alleging that Plaintiffs endured prevalent abuse and harassment at the workplace, and that the acts were subjectively and objectively severe or pervasive enough to alter the terms of Plaintiffs’ employment. [Citation omitted] Gabrielle D’Annunzio experienced approximately thirty instances of sexual harassment, including having her buttocks grabbed. Lauren D’Annunzio was sexually harassed three to four days a week, including physical harassment such as Orellano’s exposing of her bra and grabbing of her body. In addition, it is undisputed that Orellano physically attacked her in the basement of the restaurant in July 2008. Finally, Ashley D’Annunzio was subjected to on-going comments about her figure and how she could be sexually pleasured outside of work.

These facts demonstrate that the conduct was severe and pervasive, and that an objectively hostile work environment was created. Defendants’ absurd attempts to argue that the grabbing and slapping of Plaintiffs’ butts, touching of breasts, and pulling up of Plaintiff Lauren’s blouse constitute non-actionable “innocuous physical contact” are an outrageous misstatement of the record. [Citations omitted]. Plaintiff Ashley D’Annunzio was subject to other employees making gestures about her chest, looking her up and down, commenting on how beautiful and sexy she was, and asking her out on a date. [Citations omitted]. Further, the single incident of sexual abuse as to Lauren D’Annunzio alone supports a claim of hostile work environment. [Citations omitted]. (Emphasis added.)

The court also noted that plaintiffs complained to the general manager, Gomez, about the harassment they endured, and that those allegations were “well-supported in the record, which documents that by the totality of the circumstances, the harassment was subjectively severe or pervasive.” It characterized defendants’ argument to the contrary as “ludicrous”.

It continued:

[T]he detailed and overwhelming evidence of disturbing sexual harassment in this case compel summary judgment in favor of Plaintiffs. Plaintiffs have submitted detailed declarations attesting to the harassment they endured by Orellano, Marquina, Bautista, and Coronel during their employment. Plaintiffs Gabrielle and Lauren D’Annunzio also state that Gomez laughed along with the harassment. Although Defendants have submitted affidavits from Gomez, Bautista, and Marquina contesting these claims and stating that they did not participate in any of the alleged harassment, those conclusory protestations are clearly insufficient to withstand summary judgment. [Citations omitted]. Gomez’s declaration and deposition do little to bolster his claim that that if such pervasive harassment had occurred, he would have heard it. [Citation omitted]. The record clearly supports the Plaintiffs’ claim that Ayken did nothing about the toxic work environment of which it knew, or had constructive knowledge.

While … summary judgment in favor of plaintiffs is not ordinarily granted, the outlandish behavior of Defendants in this case compels it. Here, Ayken was complicit in every way: it provided no reasonable avenue for complaint, and although clearly aware or constructively aware of the harassment, did nothing about it. [Citation omitted]. The Plaintiffs have introduced overwhelming evidence to support this set of facts. Gomez witnessed numerous instances of harassment in the normal course of his job responsibilities, and conceded that he received Gabrielle D’Annunzio’s complaint about Bautista. Ayken also did nothing to prevent the danger of Orellano, who eventually attacked one of the Plaintiffs in Ayken’s own basement, and was subsequently convicted and deported. These events are sufficient, combined with the plethora of other disturbing allegations in this case, to affirmatively impute liability to Ayken on Plaintiff’s Title VII claim.

Faragher-Ellerth Defense Inapplicable

In addition, defendants were not entitled to rely on the Faragher-Ellerth defense, which requires a showing that “(1) the employer exercised reasonable care to prevent and correct promptly any discriminatory harassing behavior, and (2) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”

In rejecting defendants’ reliance on this defense, the court reasoned:

Plaintiffs have introduced evidence that they each complained to Gomez on multiple occasions, and that the alleged harassment did not stop—indeed, Plaintiffs introduce specific facts showing that Gomez laughed along with the purported harassment. Further, Plaintiffs introduced evidence that Ayken failed to adequately disseminate and translate its employee handbook. This demonstrates that Ayken did not take sufficient or reasonable actions to prevent discriminatory behavior. [Citation omitted]. Furthermore, Plaintiffs’ evidence shows that instead of taking action to correct any discriminatory harassing behavior, Defendants did the opposite—Gomez, the General Manager of the restaurant, laughed along with the harassers and contributed to the harassment. On these overwhelming facts, the Faragher–Ellerth defense is not available to Defendants.

Individual Liability

The New York State Human Rights Law, unlike Title VII, permits the imposition of liability on individual employees. Plaintiffs sued Ayhan Hassan (Ayken’s president and sole shareholder) and general manager Gomez individually. Specifically, plaintiffs alleged that Hassan and Gomez “aided and abetted” Ayken.

General manager Gomez was individually liable, in light of “evidence that Gomez joked with employees and laughed along with them when the employees were harassing Plaintiffs.”

The court, however, held that Hassan was not liable, since they “fail to allege or provide any evidence that Hassan was actually aware of any harassment or complaints, and existing caselaw does not support NYSHRL liability absent this knowledge.”

Workers’ Compensation Bar

Finally, the court dismissed plaintiffs’ claims for negligent infliction of emotional distress, negligent supervision, and respondeat superior, as such claims were barred by New York’s Workers’ Compensation Law.

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