In Dillon v. Ned Management, Inc. et al., 13-cv-2622 (EDNY 2/2/15), the Eastern District of New York denied defendants’ motion for summary judgment on plaintiff’s hostile work environment sexual harassment, aiding and abetting, and retaliation claims.
The decision offers a good review of the current state of the law under Title VII of the Civil Rights of 1964 and the New York City Human Rights Law.
The facts of the case, if established, amount to an almost textbook definition of sexual harassment and retaliation:
Plaintiff contends that the docking of her pay and her termination occurred because she accused one of her bosses, defendant Yacov Fridman, of making unwanted sexual advances toward her. She was employed as a secretary, front-desk attendant, and nerve conduction technician at defendant Ned Management, Inc., a family-run management services organization for doctors, which operates out of various locations in New York City.
Defendant Joe Milligan, Dillon’s immediate supervisor, and defendant Eric Vainer, the owner of the company, she charges, largely ignored her when she complained about Fridman’s behavior. Mr. Vainer, considering the accusations about his stepfather to be false, told Dillon to “get an attorney.” Defendant Polina Vainer, the bookkeeper of the company and mother of Mr. Vainer, it is alleged, docked Dillon’s pay in retaliation for lodging an informal complaint against Fridman—referred to by the parties as Mrs. Vainer’s common-law husband. …
Defendants insist that Dillon’s incessant lateness – and nothing more – resulted in her firing.
After summarizing the law in detail, Eastern District of New York Judge Weinstein held that plaintiff presented sufficient evidence to overcome summary judgment, and warrant a trial, on her claims against both the company and the individual defendants.
For example, regarding her hostile work environment claim against Ned Management under Title VII, the court held:
Plaintiff states an actionable hostile work environment claim against Ned Management. First, viewing the record as a whole in the light most favorable to her, the harassment she endured was sufficiently severe, altering the conditions of her working environment. Twice, Fridman made demeaning sexual proposals to plaintiff with money. A third time, while both were engaged in doing work for Ned Management, he made direct contact with an intimate part of her body: her buttock. This single incident of contact is sufficient to constitute the creation of a hostile work environment. Evidence has also been proffered suggesting that Fridman harassed Dillon’s female coworker. Although defendants deny Dillon’s allegations, a decision about which version of events to credit is one to be made by the fact finder at trial, not by the court as a matter of law.
Second, Dillon can impute Fridman’s conduct to her employer. The harasser, Fridman, arguably possessed and exercised supervisory power over plaintiff. The evidence shows that Fridman, stepfather to Mr. Vainer and common-law husband to Mrs. Vainer, could take tangible employment actions against Ned Management employees; he controlled the delivery of paychecks and expected employees to obey his job related requests. As this court noted in denying defendants’ motion to dismiss: [A] jury could reasonably find that the marital relationship [between Fridman and Mrs. Vainer] included a strong influence by the husband on his wife and her son, the owner of the family company, equivalent to supervisory power.
Third, Ned Management cannot avail itself of the Faragher/Ellerth defense. Even if the court accepts, which it does not for purposes of the present motion, that Fridman was not a supervisor, Mr. Vainer’s thirty minute, apparently incomplete, and possibly biased investigation, the existence of which has been put into question by his codefendants Mrs. Vainer and Milligan, suggests that the owner of Ned Management knew about the harassment and did nothing about the civil rights violation.
Additionally, there was sufficient evidence to warrant a trial on plaintiff’s claims under the NYCHRL directly against the individual defendants:
Plaintiff has presented sufficient evidence suggesting that questions of material fact exist regarding the individual defendants’ participation in events giving rise to the creation of a hostile work environment at Ned Management. Fridman’s alleged sexual harassment, Mrs. Vainer’s order to dock Dillon’s pay, and Milligan and Mr. Vainer’s failure to take remedial action once Dillon complained of Fridman’s unwanted advances could lead a jury to reasonably conclude that each individual defendant was directly involved in the creation of a hostile work environment.
Plaintiff also presented enough evidence to pursue her “aider and abettor” claims against various individual defendants:
An aiding and abetting hostile work environment claim stands against Fridman, the Vainers, and Milligan because each had power to do more than carry out personnel decisions made by others. When plaintiff reported the harassment by Fridman to Milligan and Mr. Vainer, she was, a jury could find, berated and retaliated against. Mrs. Vainer docked Dillon’s pay and, within days of Dillon’s verbal complaint about her treatment at the hands of Fridman, she was fired. Failing to conduct an adequate investigation of Dillon’s sexual harassment complaint, effectively ignoring her and suspiciously docking her pay for the day she was grabbed by Fridman, if proved at trial, would support Dillon’s sex discrimination claim against the Vainers and Milligan.
The court also held that plaintiff’s retaliation claims would proceed, finding that plaintiff “demonstrated that there are questions of material fact regarding whether the reasons proffered for the docking of her pay and her ultimate termination were pretextual.”
Notably, defendants “fail to offer any explanation as to why she was not paid for working the day Fridman grabbed her”, and “fail to present credible evidence that Dillon had been informed before her date of termination that lateness was a problem.”