In Kraiem v. Jonestrading Institutional Services LLC, No. 19-5160, 2021 WL 2134818 (S.D.N.Y. May 26, 2021), the court, inter alia, granted plaintiff’s motion for leave to amend her First Amended Complaint to include an “aiding and abetting” theory of liability against one individual defendant (Mazzullo).
From the decision:
Plaintiff sufficiently alleges that Mazzullo aided and abetted the hostile work environment at Jones. This Court has already concluded that Kraiem’s hostile work environment claim against Jones for conduct encompassing the Dallas, Greenwich, and New York incidents would survive dismissal. Aiding and abetting is only a viable theory where an underlying violation has taken place. See Osborne v. Moody’s Invs. Serv., Inc., No. 1:17-CV-01859, 2018 WL 1441392, at *7 (S.D.N.Y. Mar. 22, 2018) (citing Falchenberg v. New York State Dep’t of Educ., 338 Fed.Appx. 11, 14 (2d Cir. 2009) (summary order)). Mazzullo actively participated in the underlying violation. The proposed SAC alleges that during the Dallas trip in April 2017 (a few months before the New York business trip) Mazzullo hugged Plaintiff, grabbed her waist, repeatedly asked if he could return to her hotel room, and made derogatory remarks toward her and about her to others. SAC ¶¶ 50–52, 54. Plaintiff also alleges that she reported his conduct to her direct supervisor, Cunningham, and just two weeks later, Mazzullo told certain Jones employees that Kraiem was “not his type.” Id. ¶¶ 56. Taking as true her allegations that Mazzullo engaged in discriminatory acts that contributed to that hostile work environment, id. ¶¶ 58–70, at this stage, the Court concludes that the proposed complaint adequately allege an aiding and abetting claim.
The court reached the opposite conclusion, however, with respect to plaintiff’s proposed amended complaint against other individuals under an aider and abettor theory, noting that the complaint “fails to plead that they personally engaged in any harassing or retaliatory conduct that had an impact on Plaintiff within New York City leading up to her termination.”