Retaliation Claim Under NYC Human Rights Law Insufficiently Pled

In Schmitt v Artforum Intl. Mag., Inc., 2018 NY Slip Op 33345(U) (Sup. Ct. NY Cty. Dec. 20, 2018), the court (inter alia) dismissed plaintiff’s retaliation claim under teh NYC Human Rights Law.

In sum,

plaintiff alleges retaliation by both defendants a violation of the New York City Human Rights Law [Administrative Code of the City of New York§ 8-107 (7)[.] … According to the complaint, on May 7, 2017 (a date five years after plaintiff resigned from Artforum in August, 2012), plaintiff saw Landesman at a restaurant. Landesman, at that encounter, allegedly “slandered and humiliated [plaintiff] in front of her partner” by saying that she had unfairly accused him of sexual harassment. He
then asked her to discuss the matter with him and then “threatened” to discuss “the details” with a person named Kitnick. Plaintiff alleges that Landesman was acting within the scope of his Artforum employment and made the statement to protect himself and Artforum from plaintiff’s potential legal claims.

In dismissing plaintiff’s claim, the court explained:

The alleged misconduct in this case took place five years after plaintiff left Artforum and thus
five years after plaintiff and Landesman were in an employment relationship. The complaint
alleges that Landesman’s alleged retaliatory action, in the form of what it characterizes as
defamatory remarks on May 7,2017, took place in retaliation against plaintiff having made a
complaint about Landesman to Artforum, in June, 2016. Plaintiff’s complaint about Landesman
was made to Artforum only. She never made a complaint to any governmental authority, either
during her employment or after it ended. She could not have made such an official complaint
in 2016, as the three year statute of limitations had expired.

The five year gap between plaintiff’s employment and the alleged wrongful acts is sufficient to
eliminate any nexus between her employment and the alleged acts. (see Bantomi v. Saint
Barnabas Hospital, 146 AD3d 420)There are no facts alleged in the complaint that show how a
person would be discouraged from making a complaint of wrongful conduct when a person
could not perceive any connection between the alleged wrongful conduct, both defendants’
denial of culpability, and plaintiff’s prior employment, as this nexus does not exist. (see BallenStier
v. Hahn & Hansen, L.L.P, 284 AD2d 263) This is particularly true in the case of Landesman,
as there is no allegation that he was plaintiff’s employer and his words were spoken in a purely
social setting. Nor can it be said, based on the facts plaintiff alleges, that defendants’ words
were improper. Defendants were entitled to make responsive statements in defense to
plaintiff’s accusation. (see Mehlman v. Montefiore Medical Center,98 AD 3d 107, 129)
Moreover, as will be discussed, the statements were not defamatory. Therefore, there was no
unlawful, retaliatory act.

Share This: