Remix Bartender’s Gender-Based Hostile Work Environment Claims Dismissed as Insufficiently Pled

In Bliss v. MXK Rest. Corp., No. 16CV2676, 2016 WL 6775439 (S.D.N.Y. Nov. 14, 2016), the court dismissed plaintiff’s gender and sexual orientation-based hostile work environment, retaliation, and aiding-and-abetting discrimination claims.

In her complaint, plaintiff – a bartender/manager at defendants’ Remix nightclub – alleged (among other things) that she was subjected to a hostile work environment based on her gender and her sexual orientation (homosexual). Specifically, and as summarized by the court:

First, Defendants required her to bartend at private “sex parties” at the nightclub, during which Bliss “[was] subjected to nudity, prostitution, and people performing sexual acts in her presence.” Compl. ¶ 11. Second, [defendant Panagiotis] Kotsonis “routinely and regularly made derogatory comments regarding people within the LGBT community, referring to gay people as ‘faggots’ … in front of Bliss despite the fact that he was aware of her sexual orientation.” Compl. ¶ 12. Finally, Kotsonis displayed “a discriminatory animus toward black/African Americans … routinely treat[ing] African American employees in a derogatory manner,” firing them “on a whim,” and making frequent use of racial epithets. Compl. ¶ 13. Although Bliss claims that she continuously objected to these actions (and that Kotsonis ignored her) (Compl. ¶ 15.), she does not allege that she herself was the target of racial discrimination1 or that Kotsonis directed any epithets toward her.

The relationship between Bliss and Kotsonis took a turn for the worse in November 2014 when Kotsonis fired a black male employee of Remix for reasons that were unclear to Bliss. Compl. ¶ 16. Bliss told that terminated employee of “her belief that Kotsonis was racist” and advised him to “pursue a claim based on that fact.” Compl. ¶ 16. In response, Bliss alleges, Kotsonis undertook a series of retaliatory measures that included yelling at her, threatening to fire her in front of other employees, removing her managerial title (but not her managerial tasks), and withholding shift pay and a portion of her tips. See Compl. ¶¶ 17–18. According to Bliss this conduct, which continues to date, constitutes unlawful retaliation against the protected activity of encouraging her former co-worker to sue. There is no suggestion in the pleadings that the former co-worker ever pursued a claim against MXK or Kotsonis.

After summarizing federal and state law (Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law, respectively) applicable to plaintiff’s gender-based hostile work environment claim, the court applied it to plaintiff’s allegations:

Here, Bliss fails to establish the necessary causal link between Defendants’ offensive conduct and her gender. First, Kotsonis’s alleged derogatory comments about LGBT persons and African Americans, however loathsome, are irrelevant to her gender discrimination claims; there is nothing to suggest that they created a hostile work environment because of Bliss’s gender. The Title VII inquiry “is an individualized one,” Krasner, 680 F. Supp. 2d at 514, and a hostile work environment “is actionable … only when it occurs because of an employee’s sex, or other protected characteristic.” Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001) (emphasis added). Bliss cannot simply allege a series of offensive racist and homophobic comments by her supervisor, point out that she is a woman, and thereby state a claim for gender discrimination. Even if we accept—as we must on a motion to dismiss—that Kotsonis is as repugnant Bliss makes him out to be, the allegations about his racially motivated firings and frequent use of derogatory epithets cannot support a claim for a hostile work environment based on gender.

Bliss’s allegations about being required to bartend at sex parties also do not state a claim for hostile work environment on the basis of her gender. Bliss cites to Petrosino v. Bell Atlantic for the proposition that offensive conduct directed at all employees can still be more offensive to certain employees due to their gender. 385 F.3d 210, 222 (2d Cir. 2004) (“[T]he fact that much of [the offensive conduct] was not directed specifically at [the plaintiff] … does not, as a matter of law, preclude a jury from finding” a hostile work environment.”). This comparison only serves to highlight the insufficiency of Bliss’s pleadings. In Petrosino, the plaintiff complained of persistent “sexually offensive garage banter” among male employees and “crude sexual graffiti scrawled by co-workers” on office walls, communicating a “generally low view of women.” 385 F.3d at 214. Because “the depiction of women in the offensive jokes and graphics was uniformly sexually demeaning [toward women],” the court found that the conduct was “particularly insulting to women because [it] cast women in a demeaning role: as objects of sex-based ridicule and subjects for sexual exploitation.” Petrosino, 385 F.3d at 222, 224. Here, Bliss merely alleges that while she bartended she was “subjected to nudity, prostitution, and people performing sexual acts in her presence.” Compl. ¶ 11. She does not claim that she was subjected to these sights because she is a woman, nor do her allegations suggest that observing these parties was necessarily more offensive to women. Accordingly, Bliss fails to state a claim for a hostile work environment based on gender.

Plaintiff’s hostile work environment claim was likewise insufficient under the comparatively broader New York City Human Rights Law, since she did not allege “that Defendants’ conduct created a hostile work environment ‘because of’ her gender.”

As to plaintiff’s retaliation claim, plaintiff failed to plead that she engaged in protected activity, noting (inter alia) that ” [s]imply expressing one’s belief about management’s racist tendencies in confidence to a co-worker and giving (apparently unheeded) advice cannot qualify as opposition to a Title VII violation.”

The court also dismissed plaintiff’s sexual orientation-based hostile work environment claim, noting that “Title VII does not prohibit harassment or discrimination because of sexual orientation.” The court declined to exercise supplemental jurisdiction over her New York State and City Human Rights Law sexual orientation discrimination claims. It noted, however, that “Kotsonis’s ignorant and demeaning treatment of LGBT persons may well expose him to liability under” those laws, and dismissed her state claims without prejudice to re-filing them in state court.

Finally, the court dismissed plaintiff’s claims under the NYSHRL and NYCHRL against Kotsonis individually for aiding and abetting discriminatory practices, reasoning that “an individual cannot aid or abet his or her own violation of the Human Rights Law” and  “[w]here no violation of the Human Rights Law by another party has been established … an individual employee cannot be held liable for aiding or abetting such a violation.” In sum, “the dismissal of Bliss’s claims against MXK is fatal to her aiding and abetting suit against Kotsonis.”