Retaliation Claim Survives Dismissal Against Artforum International Magazine

In Schmitt v. Artforum International Magazine et al, No. 10080, 159496/17, 2019 N.Y. Slip Op. 09352, 2019 WL 7173975 (N.Y.A.D. 1 Dept., Dec. 26, 2019), the court, inter alia, held that plaintiff sufficiently alleged retaliation under the New York City Human Rights Law, modifying the lower court’s order dismissing that claim as facially insufficient under CPLR 3211(a)(7).

This decision is instructive as to the circumstances under which a plaintiff may maintain a retaliation claim based on allegedly retaliatory acts and events occurring after plaintiff has ceased to be a full-fledged “employee” of the defendant.

The court summarized the law, in part, as follows:

The plaintiff, if not a current employee, should be shown to occupy a subordinate position in an ongoing economic relationship that is threatened by the “employer’s” retaliation, and the nature of the retaliation itself should have a demonstrable nexus to the harm being alleged. These are factual issues which can be explored outside of the context of the present challenge to the pleadings. Such an approach comports with the directive in Albunio v. City of New York (16 NY3d 472 [2011] ) that the New York City Human Rights Law should be construed by its terms as broadly as is reasonable, with some license given for how its terms are to be construed in accordance with that principle. In Albunio, the plaintiffs claimed that their careers were adversely impacted for having opposed a superior officer’s discrimination against another officer whom the supervising officer believed to be gay. Although one of the plaintiffs had not formally filed a complaint claiming retaliation, the evidence indicated that her career, in fact, had been adversely impacted and, interpreting the City Human Rights Law broadly, the Court of Appeals found that the jury could draw an inference of retaliation against her on the basis of the proof submitted. The Albunio principle, however, requires that even a broad construction demands that for a retaliation claim, the facts must demonstrate that the defendant’s actions and the position in which the plaintiff is consequentially placed exceed what would reasonably be expected. This must be a difference in treatment [that is] attributable to retaliation[.]

The court, applying the law to the facts, explained:

These facts, as pleaded and supplemented by materials in the record, satisfy that requirement for purposes of stating a cause of action for retaliation against Artforum. Plaintiff’s employment in her career started with Artforum, where Landesman, allegedly known to engage in sexual harassment at that time, was her supervisor. Landesman, a publisher, supervisory employee and part owner of Artforum, allegedly engaged in extensive sexual harassment during those early years, which continued for several years thereafter, during which he even portrayed himself as her “teacher.” Even if his meaning was libidinous rather than supervisory as time went on, he nevertheless underscored the extent to which plaintiff remained professionally and economically tethered to him, and hence to Artforum, due to their influence in the art world, at least for purposes of CPLR 3211(a)(7).