Concierge Sufficiently Alleges Intentional Infliction of Emotional Distress, But Not Employment Discrimination, Claims Against Building Resident

In Lation v. Fetner Properties, Inc., 2017 WL 6550691 (S.D.N.Y., 2017), the court addressed claims by a Manhattan building concierge (plaintiff Lation) arising from harassment by a resident of, and an owner of one unit in, the condominium where plaintiff worked (defendant Thomas Chiu).

The court compelled arbitration against Defendants 1212 Fifth Avenue Condominium and Fetner Properties, Inc. and granted plaintiff’s motion for default judgment against defendant Chiu – who did not answer the complaint – but only with respect to plaintiff’s intentional infliction of emotional distress claim. It denied plaintiff’s motion for a default judgment as to his employment discrimination and tortious interference claims.

Here are the facts, as summarized by the court:

Carl Lation works as a concierge at 1212 Fifth Avenue Condominium, a luxury condominium on Manhattan’s Upper East Side. … The Complaint details a variety of disturbing incidents in which Thomas Chiu, a resident of the condominium, harassed Lation while on duty. Over the course of many months, Chiu directed racist and homophobic comments and other profanities at Lation…; slapped Lation’s hand as he was giving Chiu his mail…; and exposed his buttocks to Lation.

Initially, the court summarized the law and standards for granting a default judgment under Federal Rule of Civil Procedure 55(a):

A party against whom a judgment for affirmative relief is sought is in default when he has failed to plead or otherwise defend. … [A] default judgment entered on well-pleaded allegations in a complaint establishes a defendant’s liability. …  Because a default is an admission of all well-pleaded allegations against the defaulting party, … a district court must accept as true all of the factual allegations of the non-defaulting party and draw all reasonable inferences in [his] favor… . However, because a party in default does not admit conclusions of law, a district court must determine whether the [plaintiff’s] allegations establish [the defendant’s] liability as a matter of law.

Turning to the merits, the court held that plaintiff’s claims against Chiu under Title VII of the Civil Rights Act of 1964 and the New York City Human Rights Law failed, since those statutes “provide a cause of action against an employer who engages in employment discrimination”, and Chiu was not plaintiff’s employer.

The court explained:

Under both the federal and city statute, an individual must exercise some degree of control over an employee to qualify as his employer. For purposes of defining an employer under Title VII, courts consider the thirteen factors laid out by the Supreme Court in Community for Creative Non–Violence v. Reid, 490 U.S. 730 (1989). Although [n]o one of these factors is determinative, the common-law element of control is the principal guidepost that should be followed. … Similarly, under the NYCHRL, common-law principles … determine who may be liable as an employer … , with greatest emphasis placed on the alleged employer’s power to order and control’ the employee in his or her performance of work.

Applying the law, the court held:

Chiu is a resident of the condominium and an owner of one unit in the building—nothing more. Chiu does not supervise or direct Lation’s work, nor does he possess the power to hire or fire Lation, nor does he control Lation’s benefits or compensation. Despite the egregiousness of his alleged conduct, Chiu is not Lation’s employer simply by virtue of owning property in the building that employs Lation.

Next, the court held that plaintiff cannot state a claim for tortious interference with employment contract against Chiu, since plaintiff’s employment was never terminated.

Finally, turning to plaintiff’s claim for intentional infliction of emotional distress, the court held that plaintiff “has sufficiently alleged that Chiu’s extended campaign of harassment and bullying went far ‘beyond the bounds of decent behavior’ and was ‘sufficiently outrageous to warrant the imposition of liability.'”

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