Kersul v. Skulls Angels Inc.

• Decision Date: 08 November 1985
• Citation: 130 Misc.2d 345,495 N.Y.S.2d 886
• Parties: , 42 Fair Empl.Prac.Cas. (BNA) 987, 43 Empl. Prac. Dec. P 37,040 Roberta KERSUL v. SKULLS ANGELS INC., Communicar, Ltd., and Mario P. Maggio.
• Court: New York Supreme Court

Page 886

495 N.Y.S.2d 886

130 Misc.2d 345, 42 Fair Empl.Prac.Cas. (BNA) 987,

43 Empl. Prac. Dec. P 37,040

Roberta KERSUL v. SKULLS ANGELS INC., Communicar, Ltd., and Mario P. Maggio.

Supreme Court, Special Term,

Queens County, Part 1.

Nov. 8, 1985.

Loren Bailey, New York City, for plaintiff.

Hayt, Hayt & Landau, Great Neck, for defendants.

HAROLD HYMAN, Justice.

This is a motion by defendants pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action. The complaint in this action was served on or about April 4, 1985. At the time this motion was made, issue had not yet been joined.

The complaint alleges six causes of action and the facts as alleged therein are as follows: Plaintiff began her employment as office manager and bookkeeper with Skulls Angels Inc., in August 1975. In November 1979, defendant Mario P. Maggio, President of Communicar, Ltd., the successor corporation of Skulls Angels Inc., became plaintiff's supervisor.

Sometime in September 1982, Gail Nevins was hired by Skulls as a telephone operator and was thereafter transferred to the position of clerical trainee with defendant Communicar and was put under the supervision of the plaintiff. In November 1983, Mr. Maggio began having "a close personal relationship" with Ms. Nevins, which allegedly continues to the present time.

Plaintiff, in her capacity as office manager, indicated to Mr. Maggio on numerous occasions that Ms. Nevins was not satisfactorily performing her job responsibilities and that she was unwilling or unable to perform her duties. Despite her unsatisfactory performance, Ms. Nevins was given a substantial bonus in 1983, in excess of that received by other employees. In January 1984, Ms. Nevins was promoted to the position of President's Assistant/Secretary and was thereafter no longer under the supervision of the plaintiff. Mr. Maggio provided benefits to Ms. Nevins, which benefits were not given to any other employees, such as the summer off, unwarranted salary increases and excessive bonuses. As a result of her criticism of Ms. Nevins, plaintiff's employment with Communicar was ultimately terminated by Mr. Maggio on or about March 8, 1984.

After plaintiff's dismissal, Ms. Nevins replaced plaintiff as the office manager and Mr. Maggio barred plaintiff from the corporate premises and instructed all employees that they would be discharged if they spoke to the plaintiff. In addition, Mr. Maggio on numerous occasions broadcast over the Communicar radio to its drivers that plaintiff was crazy.

Based upon the above allegations, plaintiff claims in her first cause of action that she has been a victim of sex discrimination in violation of the New York Executive Law, section 290 et seq. Plaintiff's second cause of action claims abusive and wrongful discharge. In the third cause of action, plaintiff alleges that defendants' actions constituted a prima facie tort in that they were performed wilfully and with intention to injure and, as a result of which, plaintiff lost her means of support. In her fourth cause of action, it is alleged that as a result of defendants' actions plaintiff suffered mental anguish, pain and suffering, humiliation and loss of self respect in the business community. The fifth cause of action alleges that defendants' acts constituted wilful infliction of emotional distress. In the sixth cause of action, plaintiff alleges that Mr. Maggio has taken steps to prevent the plaintiff from selling either or both of her limousine radios and, thus, is liable for intentional interference with plaintiff's right to contract.

On a motion to dismiss for insufficiency, the allegations set forth in the complaint must be assumed to be true and construed in the light most favorable to the plaintiff by giving her the benefit of all favorable inferences which can be drawn in the pleading. (Underpinning & Foundation Constructors, Inc. v. Chase Manhattan Bank, 46 N.Y.2d 459, 462, 414 N.Y.S.2d 298, 386 N.E.2d 1319; Shayne v. Julien, Schlesinger & Finz, P.C., 110 A.D.2d 761, 488 N.Y.S.2d 66.)

A cause of action arising out of sexual discrimination is recognized in both the Federal and State court systems. The cause of action as alleged in the State courts is based on violations of section 296 of the Executive Law while the Federal court actions are based on violations of Title VII of the Civil Rights Act of 1964. (42 U.S.C.A. § 2000e et seq.) The Executive Law makes it an unlawful discriminatory practice for an employer "because of the * * * sex * * * of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment." (Executive Law, § 296 This language is almost identical to that contained in the Federal prohibition against sexual discrimination as provided for in Title VII of the Civil Rights Act of 1964. (42 U.S.C.A. § 2000e-2[a][1].)

The type of sexual discrimination alleged to have occurred in this case, however, is not of the usual type in that plaintiff herself is not claiming that she has been the target of sexual propositions or similar suggestive behavior or abuse. Rather, she is alleging that she was denied favorable benefits, terms and conditions of employment because of her supervisor's favoring of another employee, Ms. Nevins, with whom he was having a sexual relationship.

The Equal Employment Opportunity Commission's Guidelines on Discrimination Because of Sex promulgated in 1980 refers specifically to this type of situation as being in violation of Title VII of the Civil Rights Act of 1964:

"Where employment opportunities or benefits are granted because of an individual's submission to the employer's sexual advances or request for sexual favors, the employer may be held liable for unlawful sex discrimination against other persons who were qualified for but denied that employment opportunity or benefit." (29 CFR § 1604.11[g].)

Although this court has found no other reported New York case in which a similar type fact pattern has been described, there are two cases within the Federal court system which appear to be analogous.

In Toscano v. Nimmo, 570 F.Supp. 1197 the court found that there had been a violation of Title VII of the Civil Rights Act of 1964, where the plaintiff's application for an employment position was denied and the person who was chosen for the position had been granting sexual favors to the supervisor. In King v. Palmer, 598 F.Supp. 65 an action for sexual discrimination was found to exist where it was claimed by the plaintiff that a promotion went to a less qualified nurse because that nurse had a sexual relationship with the doctor who promoted her.

Based on the guidelines promulgated by the Equal Employment Opportunity Commission and the rationale set forth in the cases of Toscano v. Nimmo (supra) and King v. Palmer (supra), the court finds that the plaintiff's first cause of action alleging sexual discrimination as against Mr. Maggio must be sustained. The court, however, finds that the pleading should be more specific. Although the language of the complaint does not specifically state that Mr. Maggio and Ms. Nevins were having a sexual relationship, according to the plaintiff the term "close personal relationship" was meant to convey that fact and, in the affidavit submitted by plaintiff, it is specifically alleged upon information and belief...