(refusing to give references in retaliation for an employee's filing of a charge with the EEOC constitutes prohibited discrimination).
Moreover, the NYHRL designates blacklisting as an unlawful discriminatory practice, albeit in the non-employment context. Subdivision 13 of § 296 provides that it is an "unlawful discriminatory practice for any person to discriminate against, boycott or blacklist...any person, because of the race, creed, color, national origin or sex of such person." Blacklisting is plainly unlawful in the commercial discrimination context. The language of the statute should not be so narrowly construed as to prohibit a plaintiff from maintaining a claim of retaliation based upon alleged black-listing in the employment discrimination context.
iii. A Claim Is Stated Under The NYHRL
Prudential argues that no claim against it has been stated under the NYHRL because any retaliation by Jack or Farrell occurred in Ohio and Prudential is a foreign defendant.
As discussed above, the NYHRL does not provide a remedy for actions taken in Ohio against a non-resident by a foreign defendant. See pp. 5-6, supra. However, if the retaliation occurred in New York, a claim would be stated against Prudential because the NYHRL applies to discriminatory actions taken in New York by a foreign corporation. See U.S. Power Squadrons v. State Human Rights Appeal Board, 59 N.Y.2d 401, 465 N.Y.S.2d 871, 452 N.E.2d 1199 (1983) (NYHRL applies to all discrimination occurring within New York -- even discrimination by foreign corporations); see also Matter of Walston & Co. v. N.Y. City Commission on Human Rights, 41 A.D.2d 238, 342 N.Y.S.2d 459 (1st Dep't 1973) (NYHRL applies to discrimination in New York against non-residents).
At this juncture, the Court cannot determine whether the alleged retaliation occurred in Ohio or New York. While the complaint does not explicitly state that Sofoul decided not to rehire the plaintiff in retaliation for her opposition to Jack and Farrell's sexual harassment, the complaint does state that Sofoul withdrew plaintiff's offer of employment after he was contacted by Jack or Farrell, and that Sofoul gave "no response" to plaintiff when questioned about this decision. Complaint at PP 32, 33. Thus, it is reasonable to infer that Sofoul withdrew his offer to plaintiff because Jack or Farrell had informed him about plaintiff's opposition to the sexual harassment. If this inference were true, the retaliation may be considered to have taken place in New York.
In this vein, the Court is particularly mindful that, for purposes of a Rule 12(b)(6) motion, a court must consider all material factual allegations in the complaint to be true and construe all reasonable inferences in a light most favorable to the plaintiff. See Paulemon v. Tobin, 30 F.3d 307 (2d Cir. 1994). The complaint may be dismissed only if it appears beyond a reasonable doubt that a plaintiff can prove no set of facts in support of the claim that would entitle plaintiff to relief. Id. at 309. Beckett's allegations do create an inference that Sofoul may have retaliated against her because Jack and Farrell contacted him. In addition, Beckett has not had the opportunity to conduct any discovery on this issue; without the opportunity to cross-examine Mr. Sofoul, review defendants' documents, or locate potential witnesses, serious questions of fact remain. At the very least, it is unclear at this point if the retaliation took place in New York or Ohio. See Walston, 342 N.Y.S.2d at 463 (reversing N.Y. City Commission on Human Rights' assertion of jurisdiction over complaint by citizen of Illinois who alleged discrimination because it was unclear if the discrimination occurred in Indiana, Illinois, or New York). Thus, Prudential's motion to dismiss for failure to state a claim under the NYHRL is denied.
iv. Plaintiff Has Sufficiently Established A Prima Facie Case Of Retaliation
Prudential's last argument is that plaintiff's retaliation claim should be dismissed because she has not alleged a prima facie case of retaliation under the NYHRL. Pl. Mem. at 13. Specifically, Prudential claims Beckett has not alleged that Sofoul had "knowledge" of her complaint to Prudential management about the alleged harassment by Jack and Farrell.
Id. However, as discussed above, plaintiff's complaint raises an inference that contact between Jack or Farrell and Sofoul occurred, and that Sofoul may have subsequently decided against hiring plaintiff because of this contact. Sofoul thus may have had knowledge of Beckett's complaints about the alleged harassment. Accordingly, Prudential's motion to dismiss the retaliation claim is denied.
For the above reasons, defendants' motion to dismiss the sexual harassment claim is granted. Jack and Farrell's motion to dismiss for lack of personal jurisdiction is granted. Prudential's motion to dismiss the retaliation claim is denied.
SHIRA A. SCHEINDLIN
U.S. District Judge
Dated: New York, New York
May 11, 1995