Green v. Canarsie A.W.A.R.E., Inc.

• Decision Date: 10 April 2012
• Docket Number: No. 30832/10.,30832/10.
• Parties: Kimberly GREEN, Plaintiff, v. CANARSIE A.W.A.R.E., INC., and Yanira Peralta, Individually, Defendant.
• Court: New York Supreme Court

35 Misc.3d 1214
951 N.Y.S.2d 86
2012 N.Y. Slip Op. 50702

Kimberly GREEN, Plaintiff,
v.
CANARSIE A.W.A.R.E., INC., and Yanira Peralta, Individually, Defendant.

No. 30832/10.

Supreme Court, Kings County, New York.

April 10, 2012.

Scott Kreppein, Reynolds, Caronia, Gianelli et al., for Plaintiff.

William K. Phillips, Phillips & Phillips, for Defendants.

YVONNE LEWIS, J.

Kimberly Green filed this action against the Defendant, Canarsie, A.W.A.R.E., INC. (“Canarsie”) for alleged acts of discrimination and harassment on the basis of her race and gender and her retaliatory termination by defendants for her refusal to participate in sexually and racially explicit conversations. Canarsie moves to dismiss the complaint pursuant to CPLR § 32 11(a)(7) for failure to state a cause of action and CPLR § 3211(a)(1) based upon a defense founded upon documentary evidence. Canarsie asserts that the language used and the use of the word nigger by minority employees during the one month that Ms. Green was employed does not give rise to an inference of racial or sexual animus. Canarsie argues that Ms. Green failed to plead that any discriminatory conduct was alleged toward her, and failed to allege how any of the actions of the defendants support a claim for hostile work environment. Additionally, the defendants argue that the work conditions, and allegations do not satisfy the adverse employment action requirement because the alleged acts of discriminatory intimidation, ridicule, and insult must be severe or pervasive enough to alter the conditions of the plaintiff's employment, thereby creating a hostile environment. The events, according to the defendants, happened over a two day period and were offensive but not discriminatory. They assert that Ms. Green was not terminated from her job, but that she quit after she received an unsatisfactory evaluation. And, Canarsie alleges that the plaintiff never complained of the alleged discriminatory acts to anyone in management or supervisory authority. It avers that the conduct of a “supervisor without the knowledge or acquiescence of the employer does not constitute unlawful discriminatory practice,” citing, Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 786 N.Y.S2D 382 [2004] as its authority.

The plaintiff's complaint alleges that Canarsie violated the laws of the State of New York (Executive Law § 296 and the Administrative Code of the City of New York § 8–107); that she was subject to numerous acts of discrimination and sexual harassment which created a hostile and intimidating work environment. Ms. Green alleges that on a regular basis in the month that she was employed Yanira Peralta, who was one of her supervisors, would use vulgar and derogatory language such as “fuck”, “mother fucker”, “bitch,” “dick” and pussy. She contends that supervisor constantly used the word, “nigger,” including but not limited to “you're my nigger,” “nigger please,” and “that nigger”; Ms. Peralta would regularly pull up pornography on her cell phone and show pornography to clients and co-workers. According to Ms. Green, on October 14, 2010, Ms. Peralta showed a client and co-workers, a video of a woman with a penis stuck to her forehead, and stated, “that bitch had a dick stuck to her forehead, that shit is funny;” on another occasion Ms. Peralta, discussed a video of a woman's vagina being penetrated by a bottle with co-workers. Ms. Green stated that she heard her other supervisor, Joel...