Patrowich v. Chemical Bank

• Decision Date: 29 November 1984
• Citation: 473 N.E.2d 11,483 N.Y.S.2d 659,63 N.Y.2d 541
• Parties: , 473 N.E.2d 11, 59 Fair Empl.Prac.Cas. (BNA) 1801 Margaret H. PATROWICH, Appellant, v. CHEMICAL BANK, Defendant, and Harold D. Corney, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 659

483 N.Y.S.2d 659

63 N.Y.2d 541, 473 N.E.2d 11, 59 Fair

Empl.Prac.Cas. (BNA) 1801

Margaret H. PATROWICH, Appellant, v. CHEMICAL BANK, Defendant and Harold D. Corney, Respondent.

Court of Appeals of New York.

Nov. 29, 1984.

Robin J. Arzt, New York City, for appellant

Kenneth J. Kelly and John B. Wynne, New York City, for respondent.

OPINION OF THE COURT

PER CURIAM.

A corporate employee, though he has a title as an officer and is the manager or supervisor of a corporate division, is not individually subject to suit with respect to discrimination based on age or sex under New York's Human Rights Law (Executive Law, art. 15) or its Labor Law ( § 194) or under the Federal Age Discrimination in Employment Act (29 U.S.C. § 623) or Equal Pay Act (29 U.S.C. § 206, subd. ) if he is not shown to have any ownership interest or any power to do more than carry out personnel decisions made by others. The order of the Appellate Division, 98 A.D.2d 318, 470 N.Y.S.2d 599 insofar as it dismisses the complaint against defendant Corney ¹ should, therefore, be affirmed, with costs.

The Human Rights Law definition of employer (Executive Law, § 292, subd. 5) relates only to the number of persons employed and provides no clue to whether individual employees of a corporate employer may be sued under its provisions. The contrary is, however, suggested by subdivision 3-b of section 296, which makes it a discriminatory practice for "any real estate broker, real estate salesman or employee or agent thereof " to make certain representations, for it indicates that the Legislature differentiated that provision from the general definition of "employer." Plaintiff cites Hart v. Sullivan, 84 A.D.2d 865, 445 N.Y.S.2d 40, aff'd 55 N.Y.2d 1011 449 N.Y.S.2d 481, 434 N.E.2d 717, and McBride v. General Ry. Signal Co., 96 A.D.2d 1145, 467 N.Y.S.2d 457, but those cases concern only the employer's responsibility for discriminatory acts of its employee and, therefore, are not authority to the contrary.

Plaintiff fares no better under article 6 of the Labor Law. Although the definition in subdivision 3 of section 190 of "employer" provides no clue, we have recently held that the provisions of section 198-a subjecting corporate officers to criminal sanctions for violation of the article indicates a legislative intent that they not be subject to civil liability (Stoganovic v. Dinolfo, 61 N.Y.2d 812, 473 N.Y.S.2d 972, 462 N.E.2d 149, aff'g 92 A.D.2d 729, 461 N.Y.S.2d 121).

The question is a closer one under the Federal statutes. The Equal Pay Act defines "employer" to include "any person acting directly or indirectly in the interest of an employer in relation to an employee" (29 U.S.C. § 203, subd. ), and the Age Discrimination Act defines the word to mean "a person engaged in an industry affecting commerce who has twenty or more employees * * * The term also means (1) any agent of such person." (29 U.S.C. § 630, subd. We assume without deciding that an Age Discrimination action can be maintained in a State court (see 29 U.S.C. § 633a, subd. cf. Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 479, 101 S.Ct. 2870, 2875, 69 L.Ed.2d 784). We conclude, however, that the weight of Federal authority is that "economic reality" governs who may be sued under both statutes and that a corporate employee such as defendant Corney, who, plaintiff concedes, is one of approximately 800 vice-presidents of Chemical Bank and has not been shown to have any ownership interest or power to do more than carry out personnel decisions made by others is not individually subject to suit under either statute. Cases supporting that conclusion are Carter v. Dutchess Community Coll., 735 F.2d 8, 14 Donovan v. Agnew, 712 F.2d 1509, 1514 Donovan v. Sabine Irrigation Co., 695 F.2d 190, 195, cert. den. sub. nom. Alberding v. Donovan, 463 U.S. 1207, 103 S.Ct. 3537, 77 L.Ed.2d 1387, reh. den. 463 U.S. 1249, 104 S.Ct. 37, 77 L.Ed.2d 1456 York v. Tennessee Crushed Stone Assn., 684 F.2d 360, 362 Marshall v. Arlene Knitwear, 454 F.Supp. 715, 721, aff'd in part and rev'd in part 608 F.2d 1369 see Coffin v. South Carolina Dept. of Social Servs., 562 F.Supp. 579; Martin v....