In Baez v. Anne Fontaine USA, Inc., No. 14-CV-6621 (KBF), 2017 WL 57858 (S.D.N.Y. Jan. 5, 2017), the Southern District of New York denied defendants’ motion for summary judgment on plaintiff’s retaliation claims under Title VII of the Civil Rights Act of 1964 and the New York State and City Human Rights Laws, her hostile work environment claim under the NYC Human Rights Law, and her claim that defendants filed a counterclaim in retaliation for her lawsuit.[1]The court also dismissed plaintiff’s cause of action asserting failure to pay a sales commission under NY Labor Law Section 191. It noted that plaintiff did not dispute “that regional managers, like plaintiff, are not entitled to commissions”, that Labor Law Section 191-c “covers breaches of written, not oral, contracts”, and that an email stating “we will pay the bonus” set forth “no details and is therefore insufficient to constitute a contract in and of itself.”
This case features an arguably prominent feature of the American workplace – namely, so-called “office drama”.
Judge Katherine Forrest summarized the facts, and stated the issues, as follows:
Rochelly Baez brings this employment discrimination suit against Anne Fontaine USA, Inc. (“AFUSA”), her former employer, and two of its executives, Ari Zlotkin and Cindy D’Luzansky. It is undisputed that Baez’s coworkers discussed an incident in which plaintiff attended a meeting with Zlotkin, AFUSA’s chief executive officer[], wearing a revealing shirt and no bra. The statements by the coworkers are referred to throughout the parties’ papers as “rumors”—though the facts are materially uncontested. Baez complained about her coworkers’ talk. Following this incident, a certain amount of office drama ensued. It is undisputed that “drama” was cited as one of the reasons for plaintiff’s eventual termination.
The issues before the Court are, inter alia, (1) whether in light of the association of the “drama” with plaintiff’s complaints regarding her coworkers’ discussions of her dress and female body parts, defendants’ consideration of such “drama” in connection with their termination of Baez can support a claim for retaliation, and (2) whether unwanted coworker discussions of such an incident (or a similar incident) can support a claim for hostile work environment.
Here is plaintiff’s amended complaint.
In her ruling, Judge Forrest concluded that, while plaintiff’s claims are “not strong”, she could not “say that such facts do not support a very weak claim of discrimination.” Although “if comments on bra-less attendance at a meeting were made by a man, plaintiff’s case would be much stronger”, there was “no legal reason why the gender or number of speakers alters the analysis.”
Retaliation
The court began with plaintiff’s retaliation claims.
After explaining the legal framework applicable to Title VII and New York State Human Rights Law retaliation claims, the court explained its decision to deny defendants’ motion for summary judgment as to plaintiff’s retaliation claims:
Baez has made out a prima facie case of discrimination. She complained directly to D’Luzanksy, a senior executive, about the rumor and was terminated by D’Luzansky and Zlotkin—in part because she brought “too much drama” to the company—weeks later. … Defendants have rebutted the presumption of retaliation by articulating two legitimate, non-retaliatory reasons for the adverse employment action: Baez’s allegedly poor management of an employee at the Bal Harbor store, and problems with the opening of the Madison Avenue store in New York City. Accordingly, Baez must counter this proof with evidence that retaliation was the “but-for” cause of her termination.
The Second Circuit recently explained that but-for causation does not require proof that retaliation was the only cause of the employer’s action, but only that the adverse action would not have occurred in the absence of the retaliatory motive. Here, the fact that Zlotkin listed the “drama” associated with plaintiff as one of the reasons for her termination, combined with the close temporal proximity between Baez’s complaints about the rumor and her termination, is sufficient to create a genuine dispute of material fact as to whether Baez’s complaint was a but-for cause of her termination. … Defendants’ argument that Baez does not know whether Zlotkin was referring to the specific rumor about Baez showing her breasts when he mentioned “too much drama” is disputed by plaintiff (and, in any event, is a reasonable inference a juror could draw) and therefore does not eliminate any genuine dispute of material fact. Accordingly, defendants’ motion for summary judgment on Baez’s Title VII and NYSHRL retaliation claims is denied.
Because defendants were not entitled to summary judgment under Title VII and the NYSHRL, “they are a fortiori not entitled to summary judgment under the more expansive [New York City Human Rights Law].”
Hostile Work Environment
The court also denied defendants’ motion for summary judgment as to plaintiff’s hostile work environment claim under the City Law:
Baez argues that she suffered from a hostile work environment because her coworkers spread a rumor that she went bra-less to a meeting with Zlotkin, and because D’Luzansky did not sufficiently investigate, or sufficiently discipline employees for, the rumor. The Court does not view these sorts of issues as within the heartland of what federal, state, and city anti-discrimination statutes are meant to address. However, even a single comment that objectifies women … made in circumstances where that comment would, for example, signal views about the role of women in the workplace [may] be actionable. Given that the content of the rumor by nature involved Baez’s gender, the low standard under the NYCHRL, and the apparent repetition of “drama” over this incident, the Court cannot say that no reasonable jury could find that Baez suffered from a hostile work environment.
There also is a dispute of fact as to whether D’Luzansky contributed to the hostile work environment by failing to investigate the rumor sufficiently. According to defendants, D’Luzansky adequately responded to Baez’s allegations by, inter alia, giving Blynn a written warning. Baez, however, argues that D’Luzansky refused to take appropriate remedial action. Baez points to the January 16, 2014 email in which D’Luzansky wrote that she “[didn’t] think there’s anything more than I need to be included in…. I don’t think escalating to a written warning would be recommended, or necessary, at this time.” Baez also argues that Blynn’s written warning was insufficient because it concerned insubordination that had been ongoing for a long time,” rather than discipline specific to “spreading a rumor about [Baez’s] breasts being shown to [her] boss.
These disputes of fact are sufficient to overcome defendants’ motion for summary judgment regarding AFUSA’s liability under [N.Y.C. Admin. Code] Section 8-107(1) and, given that D’Luzansky “exercised managerial or supervisory responsibility. The Court also cannot say that no reasonable jury would find D’Luzansky liable—directly or under an aider-and-abettor theory—for the hostile work environment.
The court, however, dismissed plaintiff’s claims against Zlotkin, since “[n]o reasonable jury … could find that Zlotkin directly participated in, or aided and abetted, any violation of the NYCHRL.”
Retaliatory Counterclaim
Finally, the court denied defendants’ motion for summary judgment on plaintiff’s “Retaliatory Counterclaim” cause of action.
Plaintiff “argues that D’Luzansky’s Massachusetts state law counterclaim against Baez for secretly recording a conversation with D’Luzansky and [store manager Amanda] Blynn was brought in retaliation for this lawsuit in violation of Title VII, NYSHRL, and NYCHRL.”
The court explained:
Baez has established a prima facie case of retaliation: she engaged in protected activity by filing this lawsuit and suffered an adverse action by having a counterclaim filed against her shortly after she disclosed the recording. There is a material dispute of fact, however, whether D’Luzansky has provided a legitimate, non-retaliatory reason for filing the Massachusetts state law counterclaim. Baez does not dispute that she recorded a meeting between her, D’Luzansky, and Blynn. She also does not dispute that she did not tell D’Luzansky or Blynn that she was recording. She does, however, argue that her phone was out in the open, and the microphone and recording time on her phone were visible to the meeting’s participants. Because there is no violation of the relevant Massachusetts statute “where the recording was not secret, that is, [where] it was made with the parties’ consent or actual knowledge, this dispute of fact precludes summary judgment on Count VIII.
| ↩1 | The court also dismissed plaintiff’s cause of action asserting failure to pay a sales commission under NY Labor Law Section 191. It noted that plaintiff did not dispute “that regional managers, like plaintiff, are not entitled to commissions”, that Labor Law Section 191-c “covers breaches of written, not oral, contracts”, and that an email stating “we will pay the bonus” set forth “no details and is therefore insufficient to constitute a contract in and of itself.” |
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