Disability Discrimination, Hostile Work Environment, & Retaliation Claims Sufficiently Alleged Against ESPN et al

In Black v. ESPN, Inc. et al, No. 155236/2020, 2021 N.Y. Slip Op. 50118(U), 2021 WL 668760 (Sup Ct NY Cty, Feb. 19, 2021), the court denied defendants’ motion to dismiss plaintiff’s disability discrimination, hostile work environment, and retaliation claims asserted under the New York State and City Human Rights Laws.

In sum, plaintiff, a camera operator who was promoted to the position of back-up stage manager, contends that he was treated unfairly because of his medical condition (Allergic Rhinitis and Allergic Conjunctivitis). He alleged, inter alia, that his immediate supervisor (defendant David Glass) asked plaintiff, in front of several people at work, “what’s wrong with your skin” and continued to assign plaintiff to work in cold studios, even though he had supplied defendant with a doctor’s note recommending that plaintiff avoid certain “triggers” (including cold air, cold temperatures, and air conditioning) to prevent the exacerbation of his medical conditions.

As to plaintiff’s disability discrimination claim under the New York State Human Rights Law, the court explained:

The NYSHRL defines “disability” as “(a) a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or (b) a record of such an impairment or (c) a condition regarded by others as such an impairment” (Id. § 292[21] ).

The NYSHRL limits the term “disability” “to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation . . . held” (Executive Law § 292 [21]).

Reasonable accommodation “means actions which permit an employee with a disability to perform in a reasonable manner the activities involved in the job or occupation sought or held and include, but are not limited to, provision of an accessible worksite, acquisition or modification of equipment, . . . job restructuring and modified work schedules; provided, however, that such actions do not impose an undue hardship on the business, program or enterprise of the entity from which action is requested” (Executive Law § 292 [21-e]; see also Hosking, 186 AD3d at 62).

For purposes of this statute, an “employer” is only required to have four or more employees (Id. § 292[5]).

Provided the “employer” definition is satisfied, the NYSHRL allows for suits to be maintained against an employee for direct or aider-and-abettor liability (Id. § 296[6]; see also Vera v Donado Law Firm, 2019 WL 3306117, at *7 [SDNY June 19, 2019], report and recommendation adopted, 2019 WL 3302607 [SDNY July 23, 2019]).

“A direct claim is possible against a firm’s employee, if he or she was a supervisor with direct operational control over the plaintiff’s work conditions and the power to make relevant hiring and firing decisions” (Vera, 2019 WL 3306117, at *7 [emphasis added] ).

In addition to direct liability, the NYSHRL provides for individual aider-and-abettor liability. The Executive Law of the State of New York Section 296(6), provides, in relevant part:

It 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.
(NY Exec. L. § 296[6]). On an aider-and-abettor claim, “[i]t is the employer’s participation in the discriminatory practice which serves as the predicate for the imposition of liability on others for aiding and abetting” (Vera, 2019 WL 3306117, at *8 [internal quotations and citations omitted] ). “Moreover, in order for aider-and-abettor liability to be established, the defendant must be found to have actually participated in the conduct giving rise to the claim of discrimination” (Id. [internal quotations and citations omitted] ).

*5 For the purposes of the instant motion, Plaintiff has sufficiently pleaded that he is disabled within the meaning of the NYSHRL with impairments, inter alia, to his skin and breathing (see Cooney v City of New York Dept. of Sanitation, 127 AD3d 629, 630 [1st Dept 2015]; Wagner v Cty. of Nassau, No. 11-CV-1613, 2014 WL 3489747, *5 [EDNY July 11, 2014]; see also Sorge v Gona Realty, LLC, 188 AD3d 474, 474-75 [1st Dept 2020]). Plaintiff has specifically pleaded that “[w]hen he has a flare up, he becomes overwhelmed with congestion, running nose, skin rashes, swelling of the eyes, and other symptoms that make it difficult for him to work” (Doc. 40 ¶ 7). Further, Plaintiff’s ailments, as noted in the doctor’s note, suggest that environmental allergies may affect Plaintiff’s respiratory airways (Doc. 37). Further, Plaintiff has pleaded that he was qualified to perform his job duties and, in fact, was promoted, showing that he could perform the duties of his job in a warm studio (Id. ¶ 5).

Further, while Plaintiff has not pleaded the number of employees employed by Defendants, the Court can discern from his allegations that Defendants did employ at least four people during certain periods of Plaintiff’s employment (Id. ¶¶ 6 [Glass asked [Plaintiff], in front of numerous people ], 10 [Fisher began a vicious campaign of harassment against Plaintiff] ).

Further, Plaintiff’s pleadings give rise to a reasonable inference that his termination was discriminatory. Glass initially asked Plaintiff what was wrong with his skin. When Plaintiff explained his medical condition and requested accommodation for his disability, this request “angered” Glass, who ignored or refused to accommodate Plaintiff for his disability, and, subsequently, refused to intervene when Fisher, who was sent to “keep an eye on someone,” verbally and physically began to attack Plaintiff (Doc. 35). Although Plaintiff did not provide more details about his later complaints regarding Fisher’s continued conduct, he alleged that he continued to complain about the said conduct until he was terminated (Id.; see also id. ¶ 25).

Further, Plaintiff’s pleadings are sufficient for individual liability against Fisher and Glass under the NYSHRL and NYCHRL. While Plaintiff has not pleaded that either Fisher or Glass had the authority to hire or fire employees and, therefore, neither can be directly liable under the NYSHRL, Plaintiff, nevertheless, has sufficiently alleged, as noted above, that both Fisher and Glass participated in the discriminatory conduct and therefore can be individually liable under the NYSHRL and NYCHRL (Vera, 2019 WL 3306117, at *8).

Further, there are allegations in the Amended Complaint that Glass and Fisher were in a position to—but failed to—intervene or investigate that conduct or take remedial action (Pellegrini v Sovereign Hotels, Inc., 740 F Supp 2d 344, 356 [NDNY 2010]). In fact, Plaintiff reported Fisher’s conduct to Glass, Plaintiff’s immediate supervisor, who failed to take remedial action (Doc. 40 ¶¶ 15-20). It can also be reasonably inferred that Fisher, “a stage manager” who was sent to keep an eye on someone, had some supervision over Plaintiff, who was a “back-up stage manager”[.]

The court likewise held that plaintiff stated a claim under the (broader) New York City Human Rights Law, noting that plaintiff “has sufficiently alleged, and also presented evidence, including medical documentation, to show that he is disabled within the definition of disability under the NYCHRL” and (as noted above regarding his State Human Rights Law claim) “sufficiently pleaded that his disability caused the behavior for which he was terminated.”

As to plaintiff’s hostile work environment claim, the court explained:

Here, Plaintiff has sufficiently pleaded a claim for hostile work environment independently under both, the NYSHRL and NYCHRL. A permissible inference of discriminatory intent can be drawn from the following allegations, as also noted above in the discussion of disability discrimination. Plaintiff alleged that Glass asked him in front of his colleagues, “What is wrong with your skin?”, which was directly related to Plaintiff’s skin condition, that Glass’s treatment of him changed for the worse after Glass found out about his skin condition and related ailments, and that, subsequently, Fisher appeared to “keep an eye on someone” and began to “repeatedly yell at [him] to do various tasks which were not relevant to his job or their production and no other employees were treated in the same manner,” (Compare Whitfield-Ortiz v Dept. of Educ. of City of New York, 116 AD3d 580, 581 [1st Dept 2014]).

The court also held that plaintiff sufficiently pleaded a retaliation claim under the state and city law, based on (1) his complaint about the alleged unlawful discrimination, (2) defendant’s awareness of the complaint, (3) plaintiff’s termination, and (4) a causal connection between the complaint and his termination.

Finally, the court held that plaintiff sufficiently alleged common-law assault and battery claims against one defendant (Fisher), based on his allegation that “[o]n or about January 20, Defendant Fisher began bumping into and striking [Plaintiff] with his body, arms, and shoulder” and that this continued “through February 27, 2020 in the course and scope of [Fisher’s] employment, [and] place[d] [Plaintiff] in fear and apprehension of harmful and offensive contact with bodily harm”.

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