Fired Plaintiff Sufficiently Alleges “Aiding and Abetting” Claim Arising From Retaliatory Arrest

In Rivera v. Balter Sales Co. (decided 12/1/14), the Southern District of New York held that plaintiff sufficiently alleged claims for aiding and abetting discriminatory conduct (under the New York State Human Rights Law) and false arrest. What is interesting about this case is that plaintiff sued not only her former employer, but also the employer’s attorney.


Plaintiff, who suffers from diabetes, was fired shortly after he left work to see a doctor because his foot was hurting him. He then filed a charge of disability discrimination against defendants Balter Sales Co. and his former supervisors Marc and Lori Balter. Plaintiff had previously submitted affidavits in support of a coworker who also filed discrimination claims against the defendants. When plaintiff appeared for a mediation to address his claims, he was arrested by police on charges of having stolen money from defendants. Plaintiff then filed a charge of retaliation with the EEOC, specifically for the arrest.

Aiding and Abetting Retaliation

Initially, the court held that plaintiff sufficiently alleged that an attorney for defendants aided and abetted the predicate retaliatory conduct – namely, luring plaintiff to the EEOC office so he could be arrested for the “false accusation” of theft.

Plaintiff also sufficiently alleged an “adverse employment action”. Applying the standard defined by the Supreme Court in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), the court found that “Defendants’ alleged conduct of ‘luring’ Plaintiff to the mediation and instigating an allegedly false arrest could well dissuade a reasonable worker from making or supporting a charge of discrimination.”

The court rejected the defendants’ argument that the length of time between the protected activity (filing the EEOC charge) and the retaliatory act – five months – was too long. “The very fact that the mediation session was scheduled as a response to the EEOC charge is indicative of a direct connection”, and “the five-month delay between the EEOC charge and the retaliatory conduct can be explained by the fact that the allegedly retaliatory action was timed to coincide with the EEOC mediation.”

Plaintiff also sufficiently alleged the “direct, purposeful participation” of the attorney to support an aiding and abetting claim by alleging that defendants’ attorney “stated that he wanted to make an example of [Plaintiff] and that he had sent a copy of the mediation confirmation notice to the detectives.”

False Arrest

The court held that plaintiff sufficiently alleged that defendants intended to confine him and that such confinement was not otherwise privileged.

As to intent:

Plaintiff’s allegation that Defendants Marc and Lori Balter knowingly provided false statements to the police, which led to Plaintiff’s arrest, is sufficient to plead the requisite intent. … Plaintiff further asserts that [defendants’ attorney], acting as an “agent” of the Balters, notified the police of the mediation in order to “make an example” of Plaintiff. Accordingly, Plaintiff has met the Twombly plausibility standard in pleading the Balters’ intent to instigate his arrest and confinement.

Under New York law, “private defendants may be held liable for false arrest where the defendants lacked reasonable cause for their belief in the plaintiff’s culpability.”

Plaintiff sufficiently pleaded the absence of reasonable cause by alleging that “[d]efendants lacked reasonable cause for [their] belief that Plaintiff was guilty of stealing money from them” and that defendants knew that the statements that “led to Plaintiff’s arrest were false at the time they were made.”

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