A Nassau County trial court recently held, in DeMay v. Wheatley Hills Golf Club, Inc., that plaintiff presented enough evidence to proceed on her gender discrimination, hostile work environment, retaliation, and aiding and abetting claims under the New York State Human Rights Law, NY Executive Law § 296(1)(a).
Plaintiff Toni DeMay, the former General Manager of the Wheatley Hills Golf Club, worked under a series of employment agreements, and alleged that she was denied continued employment because of gender discrimination and retaliation.
She alleged, for example, that she was asked to place pornographic magazines in the men’s locker room/bathroom, that female servers dressed up in sexy costumes, and that she was subjected to misogynistic comments, such as “Wait a minute, who’s running this Club? This is a men’s club, isn’t it? It’s about time the men took this club back”, and one defendant’s questioning “why the club would listen to a woman.”
Gender Discrimination/Hostile Work Environment
Observing that “[d]iscrimination is rarely so obvious or its practices so overt that recognition of it is instant and conclusive, it being accomplished usually by devious and subtle means,” the court held that plaintiff presented sufficient evidence of gender discrimination to proceed to trial.
The fact that plaintiff was replaced by a man satisfied the “inference of discrimination” element of plaintiff’s prima facie case.
Plaintiff also presented sufficient evidence of pretext.
For example, defendants’ rationale for letting plaintiff go – that it wanted to “go in another direction” and that plaintiff’s performance was unsatisfactory – was insufficiently documented, and three of the individual defendants lacked sufficient recollection of details surrounding the decision not to renew plaintiff’s contract.
Also, while one defendant who voted against renewing plaintiff’s contract because he “didn’t see significant changes from 2009 and 2010 in the service or quality of the food”, the President advised the club membership in 2010 that “our house and restaurant operations have been very solid this year thanks to Toni DeMay and the House Committee”. There were also numerous letters, emails and reports complimenting plaintiff’s performance.
The court concluded:
Overall, the evidence as to the Defendants’ legitimate business reasons for the Plaintiff’s adverse employment action is conflicting. Even if the Defendants’ reasons were found to rebut the presumption of discrimination, the Plaintiff has raised triable issues of fact as to whether those reasons are worthy of belief or a pretext for discrimination against her because of her gender. That she received generous bonuses in 2008 and 2009 and many accolades in 2010, raises a question of fact as to whether it was more likely than not that the Plaintiff’s gender was the real reason for the Club’s adverse action. Sufficient evidence has been presented to raise a triable issue of fact as to the existence of a hostile work environment at the Club in 2010. This is not a case of a few isolated remarks.
The Plaintiff has presented evidence of (1) an undercurrent of resentment by some members toward her, as a female General Manager of the men’s Club and (2) in 2010, with the new appointments to the Board, a tipping of the scales against her. Whether that happened because of the Plaintiff’s gender or for legitimate reasons, is a question for the trier of fact. In addition, whether the decision to go “in a new direction” was part of a litigation avoidance strategy is a question for the trier of fact.
Viewing the evidence in the light most favorable to the non-moving party, credibility issues raised by the Plaintiff are sufficient to allow this case to go forward.
Retaliation
The court also held that plaintiff presented sufficient evidence to proceed on her retaliation claim.
The law provides:
To establish a prima facie case of retaliation, the Plaintiff must show (1) that she was engaged in activity protected by Executive Law § 296; (2) the employer was aware that she participated in the protected activity; (3) she suffered from a disadvantageous employment action based upon her activity; and (4) there is a causal connection between the protected activity and the adverse action taken by the employer. As in the case of discrimination, once the prima facie case is made, the burden shifts to the employer to present legitimate reasons for its actions. If the employer meets this burden, the plaintiff must then show that the reasons put forth by the employer are a pretext
Here:
Plaintiff alleges that the Defendants retaliated “against her because of her contemporaneous complaints to the Club regarding the Club’s hostile environment toward her and other women by terminating her and refusing to pay her for accrued vacation pay”. The Plaintiff’s complaints about gender discrimination constitute the protected activity in this case. Although the Defendants refer only to the Plaintiff’s complaints in August, 2010, the record includes evidence of the Plaintiff’s complaints to President McGinity regarding Mr. Gordon’s discriminatory conduct at the House Committee meeting in April, 2010. The adverse employment action was the decision not to renew her contract. Given the lack of negative performance evaluations in the past, the temporal proximity of the Plaintiff’s complaints to the decision not to renew the Plaintiff’s contract is just close enough to meet the fourth element of causal connection.
Though defendants met their burden of articulating “legitimate reasons for its actions”, triable issues of fact existed as to whether those reasons were a pretext for retaliation.
Aiding and Abetting
The law provides:
An individual may be liable under the Executive Law pursuant to two different provisions. Executive Law § 296(1) renders it unlawful for an employer to discriminate on the basis of sex. An individual may be sued for the purposes of § 296(1), but only if the individual is shown to have an ownership interest or the power to do more than carry out personnel decisions made by others. For the purposes of this action, that the individual Defendants are bondholders is not a sufficient ownership interest on which to predicate liability pursuant to Executive Law § 296(1).
Executive Law § 296(6) establishes “aiding and abetting” liability for § 296(1)(a)violations, providing that “[i]t shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article or to attempt to do so.” This broader basis for individual liability requires that the individual actually participate in the conduct giving rise to the discrimination claim
The court denied defendants’ motion for summary judgment, finding triable issues of fact due to defendants’ denial of the discriminatory conduct alleged as the basis of her discrimination claim against the club.
Vacation Pay Under the Labor Law
It rejected plaintiff’s claim, under Article 6 of the New York Labor Law, for failure to pay for unused vacation time:
Vacation pay under Article 6 is expressly regulated by [New York Labor Law] § 198–c(2). However, Article 6 of the Labor Law does not apply to the Plaintiff because she worked in an “executive” or “administrative” capacity and her earnings were “in excess of nine hundred dollars a week” (Labor Law § 198–c(3)). Individuals meeting this exclusion cannot bring claims under the Labor Law for vacation pay, or any other wage supplement.
Vacation Pay Under Employment Contract
The court did, however, find a triable issue of fact on plaintiff’s breach of employment contract claim based on the club’s alleged failure to pay her for accrued but unused vacation days. Generally, “[a]n employer does not have a legal duty to pay an employee for unused vacation time in the absence of a contractual provision requiring it to do so.”
Here, there was evidence that “the Club had an agreement that employees with over ten years of service got four weeks of vacation pay, and the amount was paid out at the end of the year” and “[o]n occasion, the vacation days were rolled over to the next year.” This evidence presented a triable issue of fact “as to the Club’s agreement with respect to the Plaintiff’s vacation pay.”