There’s Zealous Advocacy, Then There’s This: Judge “Aghast” at Sexual Harassment “Defense”

In Thomas v. EONY LLC and David Shavolian (Sup. Ct. NY Cty. Index No. 158961/2013 May 23, 2014), a New York trial court denied defendants’ motion to dismiss plaintiff’s complaint alleging sexual harassment, retaliation, and intentional infliction of emotional distress.

Plaintiff alleged, for example, that defendant violated the New York State and City Human Rights Laws by propositioning plaintiff for oral sex, asking plaintiff to look at his anal rash, and forcing plaintiff to stand next to him as he urinated.

Classy.

In denying defendants’ motion, the court stated:

This Court is aghast that any attorney would, with a straight face, claim that the conduct alleged (which, solely for purposes of this motion, is deemed to be true) does not fit squarely within the City and State anti-discrimination and anti-harassment laws. Talk about a hostile work environment! If defendants are correct, these laws, and similar ones throughout the country, would have to be scrapped as ineffective and rewritten from scratch. Based on the totality of the complaint, including matters not mentioned above, defendant Shavolian seems to have hired plaintiff principally so that he could sexually harass her, and, once she was beholden to him for her employment, to have followed through completely.

[I]f plaintiff is to be believed, Shavolian showed his true colors well before he hired her, and, conceivably, plaintiff accepted employment with the idea of bringing this lawsuit. Be that as it may, the City and State have made clear that the conduct alleged is unacceptable in the workplace and have imposed liability for it (and, in this Court’s humble opinion, rightfully so). (Emphasis added.)

The court next determined that the plaintiff’s claim for intentional infliction of emotional distress (though a “closer call”) survived dismissal:

[Intentional infliction of emotional distress] is somewhat a judicially disfavored claim, and the conduct must be, in a word, “outrageous.” However, all things considered, including the explicit sexuality, the urinating in proximity, the exposed penis, and the employment relationship (prior to said relationship, Shavolian fondled plaintiff’s breast and asked her, “Do you shave or wax your pussy?”), this Court finds that plaintiff has stated a claim sufficiently to withstand a motion to dismiss.

Although plaintiff’s sole response to defendants’ motion to dismiss was that the motion was moot – in light of plaintiff’s having voluntarily discontinued the state court action and commenced a new lawsuit in federal court asserting FLSA claims in addition to the discrimination and retaliation claims – the court nevertheless proceeded to deny the motion on the merits.

Update: I received a cease-and-desist letter from Mr. Shavolian’s attorney asserting that this post is “defamatory” and threatening to sue me if I don’t take it down; here’s my response.