Henry v. Rising Ground
| Decision Date | 10 June 2022 |
| Docket Number | Index No. 153458/2021,MOTION SEQ. No. 001 |
| Citation | 2022 NY Slip Op 31859 (U) |
| Parties | ELIZABETH HENRY, Plaintiff, v. RISING GROUND, ISAAC FREITES, a/k/a ISAAC ASCENSION FREITES, ATLANTIC TOMORROW, DAVID SMITH, LINDSAY BRIENZA, MEREDITH BARBER Defendant. |
| Court | New York Supreme Court |
MOTION DATE 05/17/2021
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 4, 5, 6, 7, 8, 15, 16, 17, 18 were read on this motion to/for DISMISS
Plaintiff Elizabeth Henry is a former employee of defendant Rising Ground (RG), a not-for-profit human services organization operating in New York City and Westchester County. Two and a half years after her resignation, plaintiff commenced an action against RG and Lindsay Brienza (Brienza) and Meredith Barber (Barber), two other former RG employees, as well as Atlantic Tomorrow (Atlantic), a vendor used by RG, and Isaac Freites, a/k/a Isaac Ascension Freites (Freites), and David Smith (Smith), two third-party individuals, in connection with her employment at RG. This action, which seeks monetary damages for violations of the New York City Human Rights Law (NYCHRL) and the New York State Human Rights Law (NYSHRL) arises out of two separate instances of alleged sexual harassment, a year apart, by two different men (Freites and Smith), neither of whom work for RG, at fundraisers that took place outside the office. RG is a defendant in 14 causes of action.
RG now moves, pursuant to CPLR 3211, for an order dismissing the complaint as against it. Plaintiff cross-moves, pursuant to NYCRR §§ 130-1.1 and 130-1.2, for sanctions, costs and attorneys' fees against RG, for its allegedly frivolous conduct in filing the motion to dismiss.
RG is a not-for-profit human services organization, servicing the greater New York City area (complaint [NYSCEF Doc No. 2] ¶ 2). RG hired plaintiff on July 5, 2018 as a Development Assistant (id., ¶ 8), and as such she was responsible for providing vital support to all fundraising, public relations, marketing, volunteerism and other activities of the Institutional Advancement Department.
Defendant Atlantic is an office technology and IT solutions company offering imaging, IT and document management (id., ¶ 3). Defendant Smith was a guest, invitee or a guest of invitee, Christa Puccio (Puccio), an employee of Atlantic, who was present at a donor event on April 28, 2019 that was sponsored by RG (id., ¶ 5).
Defendant Freites is an associate board member of RG, and was present at a donor golf event on July 26, 2018 that was sponsored by RG (id., ¶ 4).
Defendant Brienza was an RG employee, and the director of Donor Engagement (id., ¶ 6). Defendant Barber was RG's vice-president of Institutional Giving during the time of plaintiffs employment at RG (id., ¶ 7).
Plaintiff alleges that Freites, an associate board member of RG, was an attendee during the donor event on July 26, 2018, during which he committed acts against plaintiff that imposes liability against him and RG, as well as against Brienza, who was plaintiffs supervisor at RG.
Plaintiff alleges that, on July 5, 2018, at the time of her hiring as a development assistant, Barber, plaintiffs direct supervisor, cautioned her to "dress like your grandmother" (id., ¶ 9). On July 26, 2018, 21 days after commencement of her employment, plaintiff was required to attend a donor event at O'Lunney's Restaurant in New York City at which Freites was present (id., ¶ 11). Plaintiff alleges that, during this event, Freites subjected her to unwelcomed sexual advances, requests for sexual favors, sexual harassment, overt sexual comments, sexual solicitation and sexual intrusions (id., ¶ 12). According to plaintiff, Freites engaged her in an extended conversation; stood very close to her, almost touching her, and looking intimately at her; commented how interesting and intriguing she was; stated that she should find a boyfriend who could take her around the world; and told her to come to more events so that he could see her (id., ¶¶ 15-19).
Plaintiff alleges that the July 26, 2018 Freites incident was witnessed by Brienza, who approached her upon seeing how uncomfortable she was with Freites, and asked her if she was okay (id., ¶¶ 20-21). Plaintiff told Brienza that Freites was clearly interjecting himself in a very intimate manner toward her and that he made her very anxious, frightened and concerned, especially since she had just started her job three weeks ago, and it might be in jeopardy (id., ¶¶ 21-22). According to plaintiff, Brienza responded, "that is how Hispanic men are" (id., ¶ 23).
Plaintiff alleges that, at the time of the Freites incident, she was a single mother of a 17-month-old infant, so that she was in no position to file an immediate complaint (id., ¶ 25). As a result, she did not complain about the Freites incident to her employer until July 15, 2019, after her resignation, when her attorneys sent a letter to RG (id., ¶ 28).
Plaintiff alleges that Brienza did not make any report of the incident to RG's Human Resources Department, and that RG's staff and Human Resources Department did not conduct any interviews or investigation of the Freites incident (id., ¶¶ 26-27).
On April 29, 2019, plaintiff was required to work at RG's Tee For Tots Golf Outing donor event at the Westchester Country Club in Westchester County, NY (id., ¶ 33). It was plaintiffs understanding that defendant Smith was a guest, invitee or a guest of invitee Puccio, an employee of Atlantic, which, in turn, was a donor and retail contractor for RG (id., ¶ 5).
Plaintiff alleges that she first encountered Smith at the 16th hole where she was selling competition tickets, and that Smith immediately commented to Sharon Pyle (Pyle), an employee of RG, how nice it was to see beautiful women (id., ¶ 34). Plaintiff further alleges that, at the cocktail party after the golfing, Smith observed that plaintiff had changed into a shirt and said, (id., ¶ 36). According to plaintiff, this encounter was witnessed by Nancy Hruska (Hruska), an RG employee (id., ¶ 37). Plaintiff alleges that she walked away from Smith as he and a group of other men at the cocktail party leered at her in a sexually intimate fashion, and that this leering terrified and humiliated her, causing her great anxiety and emotional trauma (id., ¶¶ 38-39).
After the cocktails, there was a dinner in the evening during which there was a silent auction. Plaintiff alleges that she was standing by the table with the auction items when Smith approached her and said to her: (id., ¶¶ 40-41). Plaintiff alleges that she was disgusted, emotionally distressed and felt violated (id., ¶ 41).
According to plaintiff, the following RG employees witnessed this conduct: Barber, plaintiffs direct supervisor, co-employees Hruska and Patrick Larkin, and Pyle, an RG supervisor (id., ¶ 43). Plaintiff alleges that, subsequently, Barber visually examined plaintiffs appearance up and down to determine if her attire was "appropriate" (id., ¶ 44).
Plaintiff alleges that, at the end of the dinner, Smith again approached plaintiff and requested directions to the Pro Shop, so she began to direct him (id., ¶ 45). Defendant Smith then said, "I know how to get there, I just wanted to speak with you again" (id., ¶ 46).
Plaintiff alleges that Joelle Johnson, her predecessor in her job, was also frequently sexually harassed by RG's board members, including Nick Preddice and Matthew Del Paricio (id., ¶ 47). On those occasions, Jack Toone, another RG employee, noticed and commented: "Can you blame them?" (id., ¶ 48).
According to plaintiff, RG tolerated and fostered an atmosphere and pattern of sexual innuendo, overt suggestive comments and actions, stalking, touching, menacing, and threatening conduct by male employees, officers, directors, guests and invitees against female employees, and that RG's executive authority was utilized as a vehicle to sexually harass its female employees, including plaintiff (id., ¶¶ 49-50).
On May 8, 2019, plaintiff met with RG's Angela Harris (Harris) the associate director of Human Resources, and lodged a complaint relating to the April 19, 2019 conduct by Smith (id., ¶¶ 51, 53-54). Plaintiff alleges that she was required to attend the April 19th golf event as a member of RG's Institutional Advancement program (id., ¶ 52). Plaintiff further alleges that Atlantic provided printers and copiers to RG (id., ¶ 55).
In or about May-July, 2019, RG conducted an investigation of plaintiffs May 8, 2019 allegations against Smith, including interviews of witnesses (id., ¶ 56). Plaintiff alleges that RG did not interview Smith (id., ¶ 57). Plaintiff further alleges that RG spoke with Puccio, who indicated that she was "appalled" by Smith's behavior (id., ¶ 58).
On June 21, 2019, plaintiff informed RG by email of requests that: the contents of her interview on that day with RG's Roanica Paisley (Paisley), the senior vice-president of Human Resources, be made part of her personnel file as she had requested; that another meeting would not be productive in view of RG's attitude; and that she preferred communications by email (id., ¶ 68). By email dated July 3, 2019, RG admitted that it had received plaintiffs June 21, 2019 email (id.).
Plaintiff alleges that, in the July 3, 2019 email, RG confirmed that plaintiff had met with Harris and Paisley about the April 29 2019 incident (id....
To continue reading
Request your trial