Soumekh v. LD Consulting Servs.

• Decision Date: 25 September 2022
• Docket Number: 18-CV-6337 (DG)(SIL)
• Parties: SHADI SOUMEKH, Plaintiff, v. LD CONSULTING SERVICES, INC., PHILIP CERVONE, in his individual and official capacity, LYNETTE DALEO, in her individual and official capacity, JOHN DOES 1-5, and ABC CORPORATIONS 1-5, Defendants.
• Court: U.S. District Court — Eastern District of New York

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SHADI SOUMEKH, Plaintiff, v. LD CONSULTING SERVICES, INC., PHILIP CERVONE, in his individual and official capacity, LYNETTE DALEO, in her individual and official capacity, JOHN DOES 1-5, and ABC CORPORATIONS 1-5, Defendants.

No. 18-CV-6337 (DG)(SIL)

United States District Court, E.D. New York

September 25, 2022

REPORT AND RECOMMENDATION

STEVEN I. LOCKE, UNITED STATES MAGISTRATE JUDGE

Presently before the Court in this employment discrimination action, on referral from the Honorable Diane Gujarati, is Defendants' motion for summary judgment. See Motion for Summary Judgment Dismissing the Complaint (“Defs.' Mot.”) DE [47]; Defendants' Memorandum of Law in Support of the Motion for Summary Judgment Dismissing the Complaint, (“Defs.' Mem.”), DE [47-12]. By way of Complaint dated November 7, 2018, Plaintiff Shadi Soumekh (“Plaintiff” or “Soumekh”) commenced this action against Defendants LD Consulting Services, Inc. (“LD Consulting”), Philip Cervone (“Cervone”) in his individual and official capacities, Lynette Daleo (“Daleo”) in her individual and official capacities, John Does 1-5 and ABC Corporations 1-5 (collectively “Defendants”) alleging fifteen causes of action for: (i) Title VII of the Civil Rights Act of 1964 (“Title VII”) 42 U.S.C. §§ 2000e, et seq. gender discrimination against LD Consulting; (ii) Title VII gender harassment against LD Consulting; (iii) Title VII religious harassment against LD Consulting (iv) Title VII retaliation against LD Consulting; (v) New York Executive Law §§ 290 et seq. (“NYSHRL”) gender discrimination against LD Consulting; (vi) NYSHRL gender harassment against LD Consulting; (vii) NYSHRL religious harassment against LD Consulting; (viii) NYSHRL retaliation against LD Consulting (ix) NYSHRL gender discrimination against Cervone; (x) NYSHRL gender harassment against Cervone; (xi) NYSHRL religious harassment against Cervone; (xii) NYSHRL retaliation Cervone (xiii) NYSHRL gender discrimination against Daleo; (xiv) NYSHRL gender harassment against Daleo; and (xv) NYSHRL retaliation against Daleo. See Complaint (“Compl.”), DE [1]. For the reasons set forth below, the Court recommends granting Defendants' motion as to the gender discrimination and retaliation claims, causes of action (xiii) and (xv), against Daleo, and denying the motion on all other grounds.

I. BACKGROUND

A. Relevant Facts

The following facts are taken from the parties' pleadings, declarations, exhibits and respective Local Rule 56.1 statements. Except where indicated, these facts are undisputed.

1. The Parties

Soumekh is a Jewish woman who was employed by LD Consulting from October 2015 until October 2016. Defendants' Statement Pursuant to Local Rule 56.1, DE [41-11] (“Defs.' 56.1”) ¶¶ 1, 16; Plaintiff's Response to Defendants' Statement Pursuant to Local Rule 56.1 and Counterstatement of Material Issues for Trial, DE [51-8], (“Pl. 56.1”) ¶¶ 1, 16.^[1] At the time of the alleged incidents, Plaintiff resided in Lindenhurst, New York with her boyfriend Benjamin Wyatt (“Wyatt”). Defs.' 56.1 ¶ 2; Pl. 56.1 ¶ 2. Wyatt also worked for LD Consulting. Defs.' 56.1 ¶ 12; Pl. 56.1 ¶ 12.

LD Consulting is a New York Corporation, which during Soumekh's employment, was owned and operated solely by Daleo with its principal place of business in Farmingdale, New York. Defs.' 56.1 ¶¶ 3-5; Pl. 56.1 ¶¶ 3-5. The company works with independent attorneys to obtain clients who seek mortgage loan modifications, and its employees solicit clients and process the loan paperwork. Defs.' 56.1 ¶¶ 8-9; Pl. 56.1 ¶¶ 8-9. LD Consulting hired Cervone as the company's sales and marketing manager prior to Plaintiff's employment. Defs.' 56.1 ¶ 11; Pl. 56.1 ¶ 11. Cervone and Daleo are married, but he is not an owner of the company. Defs.' 56.1 ¶¶ 6-7; Pl. 56.1 ¶¶ 6-7.

In October 2015, Wyatt, who worked in sales at LD Consulting, introduced Soumekh to Cervone for a position there. Defs.' 56.1 ¶¶ 12-13; Pl. 56.1 ¶¶ 12-13. Cervone hired Plaintiff for an appointment setting position, which required taking calls from potential clients and setting meetings with Cervone. Defs.' 56.1 ¶ 16; Pl. 56.1 ¶ 16. Plaintiff was paid on a per-lead commission basis. Defs.' 56.1 ¶ 15; Pl. 56.1 ¶ 15.

During Soumekh's employment, she, Wyatt, Cervone and Daleo socialized outside of work on several occasions including going to dinner, visiting each others' homes and going out on their boats. Defs.' 56.1 ¶ 17; Pl. 56.1 ¶ 17. Plaintiff also invited Daleo to the bris of her nephew in June 2016. Defs.' 56.1 ¶ 18; Pl. 56.1 ¶ 18.

2. Incidents Concerning Sexual Harassment and Discrimination

i. Inappropriate Texts

Soumekh reported to Cervone, and they communicated frequently via text during her employment. See Defs.' 56.1 ¶ 21; Pl. 56.1 ¶ 21. They discussed employment-related tasks on a near daily basis, such as appointment setting, calls with clients, leads concerning potential future clients and Plaintiff's work performance. Defs.' 56.1 ¶¶ 21-23; Pl. 56.1 ¶¶ 21-23; see, e.g., Plaintiff000358, 364, 366, 368-69.^[2]

Cervone also sent memes via text to Soumekh between December 16, 2015 until October 18, 2016 on a near daily basis. Defs.' 56.1 ¶ 24; Pl. 56.1 ¶ 24; see generally Plaintiff000290-562. The memes included photos with messages containing explicit content, profanity, and references to the sexual orientation of Plaintiff's boyfriend, Wyatt. See generally Plaintiff000290-562. Some of the numerous memes included photos with text such as, “Ben just caught me blow drying my penis and asked what I was doing? Apparently ‘heating your dinner' was not the right answer,” id. at 292-93, “what if I told you anyone named Ben is gay,” id. at 302, and “I've had my penis in Ben's bum.” Id. at 303; see also, id. at 295, 297, 301, 303, 310-13.

The parties dispute whether Plaintiff welcomed the memes. Cervone claims that these conversations were jokes and friendly banter, and that Soumekh responded with “words of approbation” and sent memes herself in a way that showed she welcomed the messages. Defs.' 56.1 ¶¶ 24-31; see, e.g., Plaintiff000293 (“ur the best”); 295 (“I'm so glad I met you guys”); 297 (“Lollll”); 312 (“Ur awesome”), 315 (“Lolllllll that's too funny Ur awesome”); 345 (“lol ohhhh g-d too funny”). Plaintiff at times sent memes back to Cervone although less frequently. See Defs.' 56.1 ¶ 26; Pl. 56.1 ¶ 26; see e.g., Plaintiff000304 (“Hey Ben suck a dick”), 306 (“Hey Ben why are you so gay?”).

Soumekh, on the other hand, contends that she “periodically complied with Defendant Cervone's directives that Plaintiff send tactless memes back . . . of a similar nature and tone.” Pl. 56.1 ¶¶ 24-31. She also claims that on several occasions she instructed Cervone to stop sending inappropriate text messages, although she does not specify when, and Defendants deny these allegations. Pl. Counter. ¶ 2; see Defs.' Mem. Ex. F, Deposition Transcript of Philip Cervone (“Cervone Dep.”) 105:1321. She alleges that Cervone told her that “he needed to vent and would feel better if Plaintiff just laughed about the inappropriate text message correspondence and meme images” and directed her to respond in kind. Pl. Counter. ¶¶ 3-4. Soumekh further contends that some of her messages indicated disapproval of the text message correspondence, and that she confronted Cervone again about the text messages less than one week before her termination although she fails to specify what was said. See id. ¶¶ 5, 15; see Plaintiff000306 (a meme stating “Oh, my god, Ben, Ben, Ben, Ben, Ben, Ben, Ben, Ben!!!!!!!”); 551 (a meme of a woman saying, “oh hell no”, and a following message of “Eewwwww” in response to Cervone's meme of a young man covered with vomit). Finally, Plaintiff claims that Daleo was aware of Cervone's messages to Soumekh because Daleo told him to stop teasing Wyatt. Pl. Counter. ¶ 6; see Plaintiff000294 (“She asked me to stop teasing Ben .... She likes Ben she said I'm rude.”). Daleo testified at her deposition that she was not aware of Cervone sending messages and memes of this nature to Soumekh, although she knew that her husband teased and joked with Wyatt when they socialized. See Defs.' Mem. Ex. G, Deposition of Lynette Daleo (“Daleo Dep.”) 114:17-116:6; 119:18-120:4.

ii. Other Incidents Concerning Sexual Harassment

In addition to the text messages addressed above, Plaintiff also alleges that Cervone openly talked about “supposed sexual experiences” concerning current employees at LD Consulting, including Soumekh and Wyatt. Pl. Counter. ¶ 14. She claims that she overheard these conversations because the office was in a bullpenstyle arrangement, and Plaintiff submits six audio recordings of Cervone that she took on her phone. Pl. Counter. ¶ 14; Pl. Opp. Exs. 8-13. There are no dates or other means of identification regarding the audio recordings, and Defendants dispute these allegations and the recordings' authenticity. See Dooley Decl. ¶ 9; Defendants' Reply Memorandum of Law in Further Support of Motion for Summary Judgment, DE [52], (“Defs.' Reply”) 8-9.

iii. Incident at Mannino's Restaurant

In September 2016, Soumekh, Wyatt, Cervone and Cervone's son were dining at Mannino's restaurant in Oakdale on a Sunday afternoon. Defs.' 56.1 ¶¶ 36; Pl. 56.1 ¶¶ 36; Compl. ¶ 51. Plaintiff claims that Cervone followed her to the restroom, aggressively grabbed her arm and tried to kiss her, but she was able to push him away and return to the table. Defs.' 56.1 ¶¶ 36-38; Pl. 56.1 ¶¶ 36-38; Pl. Counter. ¶ 7. Defendants admit that the four dined at Mannino's that day, but deny that the incident between Cervone and Soumekh occurred. Defs.' 56.1 ¶ 40. The parties dispute whether anyone witnessed the incident and whether Plaintiff told anyone, including Wyatt, about it. Defs.' 56.1 ¶¶ 38-39; Pl. 56.1 ...