NYC Real Estate Agent’s Sexual Harassment and Battery Claims Survive Dismissal, Notwithstanding Her Alleged “Independent Contractor” Status

In Dominguez v. Caliber Associates II, Inc. et al. (NY Sup. Ct. Index No. 150944/2014), decided May 20, 2014, the Supreme Court (NY County) denied defendants’ motion to dismiss plaintiff’s claims for sexual harassment under the NYC Human Rights Law and battery against Caliber Associates and Caliber’s owner. (The court granted defendants’ motion to dismiss plaintiff’s causes of action for aiding and abetting discrimination, interference with protected rights and retaliation.)


Beginning in around June 2013, plaintiff worked for defendant real estate agency Caliber initially as an independent Sales and Rental Associate, and eventually as a Real Estate Agent. During her time there, she was supervised by Gruber. (You can read her state court complaint here).

Eventually, according to plaintiff, things went downhill:

[B]eginning in or around October 2013, defendant Gruber began to “sexually harass” her by making inappropriate comments about her looks and her body. Specifically, plaintiff alleges that defendant Gruber told her she needed to use her looks to rent apartments and take clients out for drinks and that her “qualifications” were her looks and her body. Plaintiff alleges that such treatment continued for months but that she ignored the comments and attempted to perform her job.

On or about December 13, 2013, defendant Caliber held its annual holiday party which plaintiff attended. Plaintiff alleges that at the end of the party, she and a friend from Caliber decided to leave and go to a local bar and that defendant Gruber joined them although he was not invited. Plaintiff alleges that she was intoxicated at the bar and that defendant Gruber began to touch her without her consent by “grabbing her buttocks, breasts and pulling her onto his lap” but that she rejected defendant Gruber’s advances. Plaintiff further alleges that outside of the bar, defendant Gruber again began to touch her without her consent “by grasping her hand and forcing her to reach down his pants until she could feel his pubic hair.” Plaintiff alleges that when she pulled her hand away, defendant Gruber told her “it’s ok, nobody is going to know, nobody is going to see, it’s fine” but that she forcefully objected to defendant Gruber’s advances.

Plaintiff then resigned from her position and sued defendants alleging battery and violations of the NYC Human Rights Law.

Independent Contractor vs. Employee

The court denied defendants’ motion to dismiss plaintiff’s first cause of action for sexual harassment pursuant to NYC Admin. Code 8-107(1) under CPLR 3211(a)(1), which authorizes a motion to dismiss on the ground of a defense “founded upon documentary evidence.”

Defendants argued that plaintiff lacked standing to sue for sexual harassment because she was an “independent contractor.” Here’s the relevant law:

To recover under New York’s Human Rights Law, plaintiff must demonstrate that he or she had an employment relationship with the defendant employer. It is well-settled that the [New York City Human Rights Law] excludes independent contractors from protection. However, [w]hether a hire is a common-law employee or independent contractor depends on factors including, inter alia, the hiring party’s right to control the work, whether the hiring party provides the hired party’s benefits, the duration of the parties’ relationship, and how payment is made. … [T]he existence of an agreement between a plaintiff and defendant that states that plaintiff is an independent contractor is not conclusive evidence that an employee-employer relationship does not exist. 

Applying these principles, the court denied defendants’ motion, finding that he documentary evidence supplied by defendant “fails to definitively dispose of plaintiff’s claim.” Specifically:

In support of their motion, defendants provide a copy of the employment agreement signed by the plaintiff which states that plaintiff “shall be treated as an independent contractor for all purposes.” However, the agreement is not dispositive and does not resolve all factual issues regarding plaintiff’s employment status. … [W]hether a plaintiff is an employee or an independent contractor turns on many factors, including, inter alia, the amount of control defendant exerted over plaintiff and whether benefits were provided to plaintiff. Defendants’ assertion that even taking those other factors into account, plaintiff was still an independent contractor is without merit as such assertion is only properly made on a motion for summary judgment. As this is a motion to dismiss, the court must take plaintiff’s allegations in the complaint as true. Here, the complaint sufficiently alleges the existence of an employee-employer relationship, specifically stating “[t]hat at all times relevant hereto, Plaintiff Dominguez was an employee of Defendant Caliber,” that defendant Caliber was her employer and that “Defendant Gruber was Plaintiff Dominguez’s supervisor and had supervisory authority over her.”

NYC Admin. Code 8-107(13) as Standalone Claim

Next, the court denied defendants’ motion to dismiss plaintiff’s cause of action alleging discrimination in violation of NYC Admin. Code 8-107(13), “which provides for employer liability for discriminatory conduct by an employee, agent or independent contractor”. Here, “plaintiff sufficiently alleges discriminatory conduct by defendant Gruber and alleges that defendant Gruber is the owner and employee of defendant Caliber”, and adopted the reasoning of other courts that have permitted a plaintiff to assert a violation of NYC Admin. Code 8-107(13) as a standalone cause of action.


“To sufficiently plead a cause of action for battery, a plaintiff must allege an intentional touching of plaintiffs person without plaintiffs consent.” Plaintiff did so, by

alleg[ing] in her complaint that she was intentionally touched by defendant Gruber without her consent. Specifically, she alleges that defendant Gruber “grabbed her buttocks, breasts, and pull[ed] her onto his lap” and that plaintiff”consistently pushed away from Defendant Gruber but he persisted.” Plaintiff further alleges that defendant Gruber “grasp[ed] her hand and fore[ ed] her to reach down his pants until she could feel his pubic hair” and that she “pulled her hand away” and “forcefully object[ed] to Defendant Gruber’s sexual advances.”

The court therefore denied defendants’ motion to dismiss plaintiff’s battery cause of action under CPLR 3211(a)(7) for failure to state a claim.

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