NYS and NYC Human Rights Law Discrimination Claims May Proceed Against Individual Provost, Notwithstanding CUNY’s Sovereign Immunity

In Bonaffini v. City University of New York and Anne Lopes, 2021 WL 2895688 (E.D.N.Y. July 9, 2021), the court addressed an interesting issue, namely: whether an individual defendant may be liable for discrimination under the New York State and City Human Rights Laws, notwithstanding that their government employer is entitled to sovereign immunity. The court’s answer is “yes.”

In this case, the plaintiff was once a Professor of Italian Studies at Brooklyn College, one of the Senior Colleges within the City University of New York (CUNY). After the college canceled its Italian major and the associated courses, plaintiff retired and commenced this lawsuit. He alleges that he suffered discrimination on the basis of age, disability, and national origin in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), the New York State Human Rights Law (“NYSHRL”), and the New York City Human Rights Law (“NYCHRL”).

As to the individual liability/sovereign immunity issue, the court explained:

Defendants next contend that, even if Lopes cannot invoke sovereign immunity, the state statutes still stand in the way. As relevant here, these statutes provide two forms of individual liability. First, federal courts have long understood the NYSHRL to allow individual liability if the individual qualifies as an “employer.” See, e.g., Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 57 (2d Cir. 2012) (quoting N.Y. Exec. Law § 296(a)(1)). In a recent opinion, however, the New York Court of Appeals clarified that the NYSHRL “does not render employees liable as individual employers.” Doe v. Bloomberg, L.P., 36 N.Y.3d 450, 457, 143 N.Y.S.3d 286, 291 (2021). That statement forecloses “employer” liability in this case.

Nevertheless, both the NYSHRL and NYCHL offer a second type of individual liability. The NYSHRL makes individuals liable for “aid[ing], abet[ting], incit[ing], compel[ling] or coerc[ing] the doing of” a discriminatory act. N.Y. Exec. Law. § 296(6). The NYCHRL contains “virtually identical” language, so the “same standards of analysis” are “used to evaluate aiding and abetting claims.” Feingold v. New York, 366 F.3d 138, 158 (2d Cir. 2004) (quoting another source). Under this framework, “a co-worker who ‘actually participates in the conduct giving rise to a discrimination claim’ ” can be held individually liable as an aider and abettor. Id. (quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995)).4

The amendment adequately alleges this type of liability. It explains that, as the Provost and Senior Vice President for Academic Affairs, Lopes oversaw the Department of Modern Languages and Literatures that housed the professors of Italian Studies. This position gave Lopes the power to “cancel[ ] and reinstat[e] courses and majors.” And with that power, Lopes decided to cancel the Italian major and courses, informed the faculty that she was taking that action, and gave the faculty the choice of teaching general educational courses, teaching courses in other departments, or being placed on administrative leave. These actions are the basis of plaintiff’s claims for discrimination on the basis of national origin, and they provide the kind of “direct, purposeful participation” that aiding and abetting liability requires. See Dodd v. CUNY, 489 F. Supp. 3d 219, 269-70 (S.D.N.Y. 2020) (holding that a CUNY department chair could qualify as an aider and abettor where he restricted the plaintiff’s teaching schedule).

Defendants argue, however, that Lopes cannot be held individually liable as an aider and abettor because the principal, CUNY, is entitled to sovereign immunity. There is plenty of authority to that effect. See Seitz v. New York, No. 2:18-cv-4149, 2019 WL 4805257, at *23 (E.D.N.Y. Sept. 30, 2019); De Figueroa v. New York, 403 F. Supp. 3d 133, 164 (E.D.N.Y. 2019); Kaplan v. N.Y. State Dep’t of Lab., No. 18-cv-3629, 2019 WL 3252911, at *5 (S.D.N.Y. July 19, 2019); Soloviev v. Goldstein, 104 F. Supp. 3d 232, 253 (E.D.N.Y. 2015); Deng v. N.Y. State Off. of Mental Health, No. 13-cv-6801, 2015 WL 221046, at *5 (S.D.N.Y. Jan. 15, 2015).

Yet plenty of other cases have reached the exact opposite conclusion, as CUNY is well aware. See Henry-Offor v. CUNY, No. 11-cv-4695, 2012 WL 2317540, at *5 (S.D.N.Y. June 15, 2012); Chen v. CUNY, No. 11-cv-320, 2011 WL 5419792, at *11 (S.D.N.Y. Nov. 9, 2011); see also Allessi v. N.Y. State Dep’t of Corr. & Cmty. Supervision, 16 F. Supp. 3d 221, 225-26 (W.D.N.Y. 2014); Lamere v. N.Y. State Off. for the Aging, No. 03-cv-356, 2005 WL 1174068, at *14-15 (N.D.N.Y. Apr. 27, 2005); Kantha v. Blue, 262 F. Supp. 2d 90, 109 (S.D.N.Y. 2003).

In my view, the second set of cases has the better argument. Although the Second Circuit has not squarely addressed the issue, it has, in a single opinion, held that an employer enjoyed sovereign immunity and gone on to analyze an employee’s individual liability under the NYSHRL and NYCHRL. See Feingold, 366 F.3d at 149, 158 (addressing the DMV and its employees); see also Henry-Offor, WL 2317540, at *5 (stating that Feingold “obliquely” resolved this issue). That analysis reflects the general rule that “a procedural bar to seeking liability against an employer does not prevent claims against an employee in his individual capacity.” Johnson v. Cty. of Nassau, 82 F. Supp. 3d 533, 537 (E.D.N.Y. 2015) (discussing the issue in depth). Under this rule, “a plaintiff may succeed in a claim under the NYSHRL by showing the employer entity’s having encouraged, condoned, or approved the discriminatory conduct of a sole employee – the same discriminatory conduct which then, perhaps circularly, proves individual liability under the aiding and abetting provision.” Id. at 536 (alteration adopted) (quoting another source). It follows that “dismissal of the cause of action against the employer/principal warrants dismissal of the derivative, aiding and abetting cause of action only where the dismissal against the employer/principal was on the merits (i.e. where the employer was not found to have engaged in a discriminatory practice).” Daniels v. Wesley Gardens Corp., No. 10-cv-6336T, 2011 WL 1598962, at *3 (W.D.N.Y. Apr. 27, 2011) (emphasis added).

The court concluded that neither the NYSHRL nor the NYCHRL barred plaintiff from suing defendant Lopes for aiding and abetting, noting that “sovereign immunity does not effect a dismissal on the merits” and that “state employees are often liable in their individual capacities even though their employer would enjoy sovereign immunity,” which was the case here.

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