Hunter v. Debmar-Mercury LLC

• Docket Number: 22 Civ. 1687 (PGG)
• Decision Date: 01 September 2023
• Parties: KELVIN HUNTER, Plaintiff, v. DEBMAR-MERCURY LLC, IRA BERNSTEIN, MORT MARCUS, and JOHN and JANE DOE 1-5 Employees of Defendant DEBMAR-MERCURY LLC, and/or corporations/subsidiaries of DEBMAR-MERCURY LLC not yet known, Defendants.
• Court: U.S. District Court — Southern District of New York

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KELVIN HUNTER, Plaintiff, v. DEBMAR-MERCURY LLC, IRA BERNSTEIN, MORT MARCUS, and JOHN and JANE DOE 1-5 Employees of Defendant DEBMAR-MERCURY LLC, and/or corporations/subsidiaries of DEBMAR-MERCURY LLC not yet known, Defendants.

No. 22 Civ. 1687 (PGG)

United States District Court, S.D. New York

September 1, 2023

MEMORANDUM OPINION & ORDER

PAUL G. GARDEPHE, UNITED STATES DISTRICT JUDGE

In this employment discrimination action, Plaintiff Kelvin Hunter contends that his former employer, Defendant Debmar-Mercury LLC; its principals, Defendants Ira Bernstein and Mort Marcus; and certain Doe individuals and entities terminated his employment in violation of the New York City Human Rights Law (the “NYCHRL”), N.Y.C. Admin. Code § 8101 et seq. Defendants have moved to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that their termination of Plaintiff is not actionable under the NYCHRL, because the termination decision did not arise from any protected status Plaintiff enjoys under the NYCHRL. For the reasons stated below Defendants' motion to dismiss will be denied.

BACKGROUND

Plaintiff alleges that he is a citizen of New York and that Debmar-Mercury is an LLC, the sole members of which are Defendants Bernstein and Marcus. Bernstein and Marcus are, in turn, citizens of California. (Aug. 7, 2023 Pltf. Ltr. (Dkt No. 39); see Cmplt. (Dkt. No. 1) ¶¶ 7-11) Jurisdiction is premised on diversity of citizenship, pursuant to 28 U.S.C. § 1332. (Cmplt. (Dkt No. 1) ¶ 3)

I. FACTS ^[1]

Plaintiff Hunter is the ex-husband of Wendy Williams, the host of the Wendy Williams Show, a daytime television program that ran from 2008 to 2022. Hunter was the executive producer of the Wendy Williams Show from its inception until his termination in April 2019. “As Executive Producer of the Show, Plaintiff Hunter undertook several functions that were pivotal to the Show's success, from the selection and/or final approval of the countless guests [who] have appeared on the Show and substantially contributed to the Show's popularity, to interfacing with Bernstein and Marcus [-] on behalf of Wendy Williams [-] for purposes of developing show ideas and the day-to-day operations of the Show.” (Id. ¶¶ 16, 18, 25-26, 28, 3239)

“Debmar[-Mercury] is a national television syndication company [that] produces, creates, finances, manages, and distributes television programming.” Defendants Bernstein and Marcus are Debmar-Mercury's “co-presidents” and “handl[e] [its] day-to-day affairs.” Debmar-Mercury produced the Wendy Williams Show for the entirety of its run, and “Bernstein and Marcus ... exercised substantial personal executive control over the business affairs of Debmar[-Mercury,] including, but not limited to, rendering final determinations as to the Show's staffing and/or personnel.” (Id. ¶¶ 10, 14-16, 24, 39)

On or about April 11, 2019, Plaintiff Hunter was served with notice that his then-wife, Wendy Williams, [had] filed for divorce.

On or about April 18, 2019, Plaintiff Hunter received the following notice from defendant Bernstein, which stated:

Dear Kevin:

Out of respect for our 10-year working relationship, we had hoped to meet with you in person and traveled to New York to do so, but unfortunately, you have canceled today's meeting and we are left with no choice but to communicate to you in writing that effective immediately, your role as Executive Producer of the Wendy Williams Show is terminated, and your professional relationship with Debmar-Mercury is also concluded.

In connection with the termination of employment, you [are] no longer permitted on the studio premises, and all communication regarding your transition (including collection of your belongings from the studio premises) should be handled via your attorney, as you have indicated that you are represented by counsel. Your attorney may reach out to either of us directly so we can direct him/her to the appropriate parties.

Thank you for all your contributions over the years, Kevin we wish you well.

- Ira

The message was sent from Defendant Bernstein with the tacit and/or explicit approval of Defendant Marcus on behalf of their corporation, Defendant Debmar [-Mercury].

The termination message to Plaintiff made no reference to any performance-related reason(s) or any decision(s) related to Plaintiffs employment as an Executive Producer.

(Id. ¶¶ 33-36)^[2]

II. PROCEDURAL HISTORY

The Complaint was filed on March 1, 2022 (Dkt. No. 1), and asserts a claim for “unlawful termination pursuant to NYCHRL § 8-107.” Plaintiff contends that he “was terminated solely because of his marital status [vis-a-vis] the Show's host,” and that this “conduct... constitutes a clear violation of Hunter's statutory rights [under the NYCHRL] to be free of employment discrimination on the basis of marital status.” (Id. ¶¶ 48-60)

In a June 6, 2022 letter, Defendants sought permission to move to dismiss the Complaint for failure to state a claim. Defendants contend that

“[t]he New York Court of Appeals has held that the prohibitions against marital status discrimination under [the New York State Human Rights Law] and [NYCHRL] prohibit discrimination only on the basis of marital status, i.e. discrimination based on the mere fact that a person is married or unmarried.” Courts in the Second Circuit have adopted that same construction. Under the NYCHRL, “marital status discrimination is limited to discrimination against those who are married or unmarried and does not apply to discrimination based on being married to a particular person.”

(June 6, 2022 Def. Ltr. (Dkt. No. 17) at 2-3^[3] (quoting Christoforou v. Cadman Plaza N., Inc., No. 04-CV-08403 (KMW), 2009 WL 723003, at *7, n.8 (S.D.N.Y. Mar. 19, 2009), and Gokhberg v. PNC Bank, N.A., No. 17-CV-00276 (DLI)(VMS), 2021 WL 421993, at *15-16 (E.D.N.Y. Jan. 6, 2021)) (brackets and emphasis in Defendants' letter))

At a July 28, 2022 conference concerning Defendants' proposed motion to dismiss, this Court pointed out that Defendants' construction of the NYCHRL had been rejected in Morse v. Fidessa Corp., 165 A.D.3d 61 (1st Dept. 2018), in which the First Department held that “the [NYCHRL's] prohibition of marital status [discrimination] addresses not only ‘whether an individual is married or not married,' but also ‘whether two individuals are married to each other or not married to each other.'” (July 28, 2022 Tr. (Dkt. No. 29) at 8 (quoting Morse, 165 A.D.3d at 68)). This Court further noted that in reaching this holding, the Morse court had concluded that Levin v. Yeshiva Univ., 96 N.Y.2d 484 (2001) had been abrogated by an amendment to the NYCHRL. (July 28, 2022 Tr. (Dkt. No. 29) at 8; see Morse, 165 A.D.3d at 67-68 (discussing Levin). In Levin, the New York Court of Appeals held that “for purposes of applying the [NYCHRL's] statutory proscription against marital status discrimination, a distinction must be made between the complainant's marital status as such, and the existence of the complainant's disqualifying relationship - or absence thereof - with another person.” Levin, 96 N.Y.2d at 490. The Levin court had ruled that the latter circumstance is not covered by the NYCHRL.

At the July 28, 2022 conference, this Court explained that

[P]laintiff's New York City Human Rights Law discrimination claim rises out of his divorce from Williams. Under Morse, such a theory of marital status discrimination is now cognizable.

Defendants have not addressed Morse or its progeny in their pre-motion letter. Defendants instead cite to Gokhberg v, PNC Bank, Nat'l Assn, 2021 WL 421993 (E.D.N.Y. Jan. 6, 2021), which states that “marital status discrimination is limited to discrimination against those who are married or unmarried, and does not apply to discrimination based on being married to a particular person.” Id. at *6. Gokhberg, in turn, relies on Christoforou v. Cadman Plaza N., Inc., 2009 WL 723003 at *7, n.8, (S.D.N.Y. Mar. 19, 2009), which in turn relies on the New York Court of Appeals decision in Levin. Id. For reasons the Morse Court explains, Levin is no longer good law.

Because it appears that [P]laintiff has pled a valid theory of marital status discrimination under the New York City Human Rights Law, [Defendants' proposed motion to dismiss appears unlikely to succeed.

(July 28, 2022 Tr. (Dkt. No. 29) at 9)

At the conclusion of the July 28, 2022 conference, the Court “ask[ed] defense counsel to speak with the clients about what [it had] said . . . and to submit a letter in one week's time stating whether they wish to proceed with the proposed motion to dismiss. If so, defense counsel will explain why there is a good-faith basis for doing so in light of the case law ... discussed today.” (Id. at 12)

In an August 4, 2022 letter, Defendants state that they will proceed with their motion to dismiss, because “this Court is not bound by Morse to the extent that it does not persuasively state New York law.” (Dkt. No. 27 at 1) This Court subsequently issued a briefing schedule for Defendants' motion. (Aug. 8, 2022 Order (Dkt. No. 28))

Defendants filed their motion to dismiss on October 21, 2022. (Dkt. No. 31)

DISCUSSION

I. LEGAL STANDARDS

A. Rule 12(b)(6) Standard

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp, v. Twombly, 550 U.S. 544, 570 (2007)). “In considering a motion to dismiss . . . the court is to accept as true all facts alleged in the complaint,” Kassner, 496 F.3d at 237 (2d Cir. 2007) (citing Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 87 (2d Cir. 2002)), and must “draw all reasonable inferences in favor of...