Ramirez v. 3690 Jad Food Corp.
| Decision Date | 08 March 2016 |
| Docket Number | Index No. 22663/2015E |
| Citation | 2016 NY Slip Op 33105 (U) |
| Parties | KASSANDRA RAMIREZ, Plaintiff, v. 3690 JAD FOOD CORP. et al., Defendants. |
| Court | New York Supreme Court |
DECISION AND ORDER
Hon. Sharon A. M. Aarons
Defendants 3690 FOOD CORP. and Rolando Duran move, pre-answer, to dismiss the complaint against them. Plaintiff submitted written opposition with supporting affidavit and exhibits. The motion is granted to the extent of dismissing the eighth cause of action for intentional infliction of emotional distress and is otherwise denied.
This action stems from incidents that are alleged to have occurred throughout plaintiff's employment as a cashier with defendant 3690 JAD FOOD CORP., alleged to be doing business as C-Town Grocery Store, from June 2014 to November 2014. The first, second, third and fourth causes of action are predicated on allegations of sex and gender discrimination and retaliation pursuant to the Human Rights Laws of New York State and New York City (hereinafter the State HRL and the City HRL, respectively). The fifth cause of action is predicated on allegations that defendants failed to pay minimum wages pursuant to Labor Law § 652 and 12 NYCRR 142-2.1. The sixth cause of action is to recover unpaid overtime. The seventh cause of action is predicated on allegations of retaliation with respect to actions taken to enforce legal wage provisions pursuant to Labor Law § 215. The eighth cause of action is for intentional infliction of emotional distress. Defendants 3690 and Rolando Duran now move, pre- answer, by notice of motion entered July 7, 2015, pursuant to CPLR 3211 (a) (7) to dismiss the complaint against them for failure to state a cause of action.
3690 and Duran argue that the complaint fails to state a cause of action inasmuch as it does not specify the number of individuals employed. They further contend that they cannot be held liable as employees or for the acts of employees. No specific argument is otherwise raised with respect to the adequacy of the allegations. Plaintiff counters that the complaint is sufficient in these respects.
Pursuant to the State HRL, it is "unlawful discriminatory practice . . . [f]or an employer . . . because of an individual's . . . sex . . . 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 [1] [a]).1 The City HRL contains a nearly identical provision covering "gender" (Administrative Code § 8-107 [1] [a]). To make out a cause of action for discrimination based on a sexually hostile work environment under the State HRL, a plaintiff must allege that, because of her sex, she was subjected to a workplace that is "permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment" (Hernandez v Kaisman, 103 AD3d 106, 111 [1st Dept 2012], quoting Harris v Forklift Systems, Inc., 510 US 17, 21 [1993]; see Chin v New York City Hous. Auth., 106 AD3d 443, 444-445 [1st Dept 2013], lv denied 22 NY3d 861 [2014]). Further, "[a]n employer cannot be held liable for an employee's discriminatory act unless the employer became a party to it by encouraging, condoning, or approving it" (Matter of State Div. of Human Rights v St. Elizabeth's Hosp., 66NY2d 684, 687 [1985] [internal quotation marks and citation omitted]; see McRedmond v Sutton Place Rest. & Bar, Inc., 95 AD3d 671, 673 [1st Dept 2012]). The State HRL, as it existed during the alleged acts and when this action was commenced, did not apply to employers with fewer than four employees with respect to claims of sexual harassment (see former Executive Law § 292 [5]).2
Under the more expansive City HRL, however, a plaintiff need only allege that she "has been treated less well than other employees because of her gender" (Williams v New York City Hous. Auth., 61 AD3d 62, 77 [1st Dept 2009], lv denied 13 NY3d 702 [2009]; see Matter of Phillips v Manhattan & Bronx Surface Tr. Operating Auth., 132 AD3d 149, 156 [1st Dept 2015]; Chin v New York City Hous. Auth., 106 AD3d at 445; Short v Deutsche Bank Sec., Inc., 79 AD3d 503, 505-506 [1st Dept 2010]). The City HRL also imposes strict liability on employers for discriminatory acts of those employees who stand in a "managerial or supervisory capacity" to the victim (Zakrzewska v New School, 14 NY3d 469, 477 [2010], quoting Administrative Code § 8-107 [13] [b] [1]; see McRedmond v Sutton Place Rest. & Bar, Inc., 95 AD3d 671, 673 [1st Dept 2012]). This City HRL provision does not apply to employers with fewer than four employees (Administrative Code § 8-102 [5]). Finally, "[o]n a CPLR 3211 motion to dismiss, the Court accepts facts as alleged in the complaint as true, accords the plaintiff the benefit of every possible favorable inference, and determines whether the facts as alleged fit within any cognizable legal theory" (People v Sprint Nextel Corp., 26 NY3d 98, 113 [2015] [citation omitted]).
Contrary to 3690 and Duran's contentions, while the complaint, at some points, refers to defendant Rolando Duran as an employee [complaint at ¶¶ 10, 12-13], it also alleges that he is the owner of 3690 [complaint at ¶ 11] and that he was the person that hired plaintiff [complaint at ¶ 31]. The complaint refers to more than four specific employees by name. Thus, making all inferences in plaintiff's favor, she adequately alleged that 3690 is an employer within the meaning of the State and City HRLs. As for 3690 and Duran's contention that they cannot be held liable for the acts of employees, it is similarly without merit. To that end, plaintiff's allegations of a hostile work environment indeed center on the words and conduct of various employees at the grocery store where she worked, whom she refers to as defendants Alex Doe, Papo Doe and Arsenio Doe.3
Plaintiff alleges that Alex, a grocery bagger, said to her ," "'[y]ou're beautiful,'" "'[y]ou've got big boobs,'" "'[n]ice legs'" and "'[l]ets have twins'" [complaint at ¶ 54]. Plaintiff further alleges that Alex made "unwelcome advances," "frequently touch[ed]" and "brush[ed] into [her] without her consent," "asked [her] to go with him to Crotona Park after work so that they would go on the rock and 'make babies'" and once instructed her to "go to the bathroom with him" and then "attempted to show [her] his penis" [complaint at ¶¶ 55-60]. According to plaintiff, she "complained to [Duran] about the sexual harassment she was forced to endure," but he "did not conduct any sort of investigation or take any remedial action in response to [her] complaints" [complaint at ¶ 63]. She continued that "[n]ot only was no action taken, but the sexual harassment escalated and [defendants] began to blatantly retaliate against [plaintiff], reducing her hours of work and giving her the silenttreatment" [complaint at ¶ 64]. Plaintiff further alleges that Papo, her manager and Duran's brother, would have to be told when she needed to void an order, and he "would sexually tell [her], '[y]ou need my finger ... my finger'" when doing so [complaint at ¶¶ 16, 67]. She also alleged that Papo "asked [plaintiff] and [another cashier] to a nearby hotel for 'drinks,'" "would touch female cashiers [at the grocery store] on the butt, without invitation," "kiss female cashiers . . . on the neck, without consent" and "attempted to touch [her, but] she resisted his unwelcome advances" [complaint at ¶¶ 69-71]. Plaintiff claims that Arsenio, a grocery bagger, told her "'I love you,'" "repeatedly attempted to touch [her] hands without invitation," had a habit of getting very close to [her]," "made a sexual gesture towards her" and "approached [her] and pulled down the zipper of his pants, while saying 'Here' [and] laughing" [complaint at ¶¶ 75-79]. Plaintiff alleges that, when she told Duran about Arsenio's conduct, he said, " " [complaint at ¶ 82].
The allegations that plaintiff was subjected to the foregoing words and acts, told Duran — who, according to her, owned the store and hired her — and that he thereafter did nothing in response, suffice to make out a cause of action under the State HRL under the theory that Duran and, by extension, 3690, became parties to the discrimination by "encouraging, condoning, or approving it" (Matter of State Div. of Human Rights v St. Elizabeth's Hosp., 66 NY2d at 687; see McRedmond v Sutton Place Rest. & Bar, Inc., 95 AD3d at 673). Furthermore, plaintiff's allegation that her manager was involved in the discrimination suffices to impose liability under the City HRL (see Zakrzewska v New School, 14 NY3d at 477; McRedmond v Sutton Place Rest. & Bar, Inc., 95 AD3d at 673). Hence, 3690 and Duran's reference to the economic reality test is inapposite, and there is no merit to their claim that plaintiff has failed to state a cause ofaction pursuant to the State and City HRLs. The branch of the motion to dismiss the first, second, third and fourth causes of action is denied.
3690 and Duran argue, without citing any authority, that plaintiff failed to specify precisely which of the named defendants employed her and, instead, alleged that she was employed by five separate defendants. They further argue that, with respect to the wage retaliation claim, plaintiff failed to allege which defendant she complained to. They do not raise any other objection to the adequacy of the complaint with respect to these causes of action. Plaintiff counters that she adequately alleged that she was employed by 3690, her employer was Duran and she complained to him. She further offers an affidavit and W-2 as exhibits attached to her opposition papers in which she avers and...
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