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E.E.O.C. v. DIE FLIEDERMAUS

December 13, 1999

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PLAINTIFF,
v.
DIE FLIEDERMAUS, L.L.C., ET AL., DEFENDANTS. ANGELA BOGGS, ET AL., PLAINTIFFS, V. DIE FLIEDERMAUS, L.L.C., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sweet, District Judge.

  OPINION

Defendants Die Fliedermaus, L.L.C. ("Die Fliedermaus"), Gerald J. Shallo ("Shallo"), Patrick Kelly ("Kelly"), Larry Cerrone ("Cerrone"), Simon Azoulay ("Azoulay"), Colin Walsh ("Walsh"), and Matt Tortoso ("Tortoso") (collectively, the "Defendants"), have moved under Rule 12(b)(5) and (6), Fed.R.Civ.P., to dismiss the complaint of plaintiffs Angela Boggs ("Boggs"), Kimberly Hawkes ("Hawkes"), Shereece Holman ("Holman"), Staci Pollard ("Pollard"), Rhonda Roenfeldt ("Roenfeldt"), and Madilyn Wade ("Wade") (collectively, the "Individual Plaintiffs") in case No. 99 Civ. 2451 (the "Boggs Action"). Die Fliedermaus has also moved to dismiss the complaint of the Equal Employment Opportunity Commission (the "EEOC" or the "Commission") in a related case, 99 Civ. 1732 (the "EEOC Action"). The Individual Plaintiffs in the Boggs Action have now also moved to intervene in the EEOC Action pursuant to Fed.R.Civ.P. 24(a), or, alternatively, to consolidate the two cases pursuant to Rule 42(a). For the reasons set forth below, the motions are granted in part and denied in part.

The Parties

The Individual Plaintiffs were each employed at Le Bar Bat at various periods during 1997. Plaintiffs Hawkes, Holman, and Wade are African-American and were employed as hostesses. Plaintiffs Boggs, Pollard, and Roenfeldt, whose ethnic backgrounds are not disclosed in the complaint in the Boggs Action (the "Boggs Complaint"), were employed as cocktail waitresses.

Plaintiff EEOC is a federal agency empowered by Congress to prevent unlawful employment practices. See 42 U.S.C. § 2000e-5(a).

Defendant Le Bar Bat, Inc. ("Le Bar Bat") is a New York corporation, with its principal place of business at 309-311 West 57th Street in Manhattan. The corporation operates a restaurant, bar, and nightclub located at 311 West 57th Street. Le Bar Bat held itself out as the Individual Plaintiffs' employer.

Defendant Die Fliedermaus is a New York limited liability company with its principal place of business at 309-311 West 57th Street in Manhattan. Die Fliedermaus also held itself out as the Individual Plaintiffs' employer.*fn1

Defendant Shallo is an owner, officer, employee, and agent of Le Bar Bat and Die Fliedermaus with decision-making authority.

Defendants Kelly, Cerrone, Azoulay, Tortoso, and Walsh work at Le Bar Bat in the following capacities: Kelly is the Director of Banquets, Cerrone is the General Manager, Azoulay is the Executive Chef, and Tortoso and Walsh are Banquet Assistants.

Background and Prior Proceedings

On various dates from January 30, 1998, to June 22, 1998, the Individual Plaintiffs filed multiple charges of discrimination with the EEOC against Die Fliedermaus. After an investigation, the EEOC issued on February 17, 1999 a determination that:

  Evidence of record shows that [Die Fliedermaus d/b/a
  Le Bar Bat] engaged in a continuing pattern and
  practice of sexual and racial harassment directed at a
  class of female and/or African American employees
  resulting in constructive discharge of those
  employees. Evidence of record established that [Die
  Fliedermaus d/b/a Le Bar Bat] created and distributed
  fliers containing derogatory and false information
  about [Boggs, Hawkes, Pollard and Roenfeldt] in
  retaliation for their having filed charges of
  discrimination with the EEOC. Based on the foregoing,
  [the District Director] has determined that there is
  reasonable cause to believe that [the named
  plaintiffs] . . . have been subject to sexual and/or
  racial harassment and constructive discharge.

On February 23, the EEOC sent counsel to Die Fliedermaus a letter informing it of the specific relief sought, which included sensitivity training, remedial notices, adoption of an effective harassment policy, back pay for those constructively discharged, and "compensatory damages up to $50,000 for each affected victim." A March 1 deadline was set for acceptance or "a reasonable written counter-proposal." The EEOC stated in its letter, "If we have not received a reasonable written counterproposal by the appointed date, we will infer that further efforts to conciliate this matter will be futile."

Also on February 23, Kelly, Tortoso, and Walsh were arrested for having

  unlawfully, wilfully and knowingly, used intimidation
  and engaged in misleading conduct toward another
  person with intent to influence, delay and prevent the
  testimony of a person in an official proceeding, to
  wit, KELLY, WALSH and TORTOSO publicly distributed
  flyers falsely labeling four persons who had named
  KELLY in pending discrimination claims filed with the
  United States Equal Employment Opportunity Commission
  as, among other things, suspected prostitutes, child
  molesters, and/or drug users.

Grossman Decl.Exh. C.

Walsh and Tortoso were also arrested for each having

  [m]ade a materially false, fictitious and fraudulent
  statement and representation in a matter within the
  jurisdiction of the executive branch of the Government
  of the United States, to wit [WALSH and TORTOSO]
  falsely told an investigator employed by the United
  States Attorney's Office for the Southern District of
  New York that [they] had no knowledge concerning the
  distribution of flyers falsely labeling four persons
  who had named KELLY in pending discrimination claims
  filed with the United States Equal Employment
  Opportunity Commission as, among other things,
  suspected prostitutes, child molesters, and/or drug
  users.

Id. On February 26, Die Fliedermaus responded to EEOC's February 23 letter, agreeing in substance to the non-monetary proposals and inquiring as to the EEOC position on interim earnings relative to back pay, the amount of compensatory damages and whether or not the affected victims included others in addition to the charging parties. No counterproposal regarding monetary relief was made.

On March 3, the EEOC informed Die Fliedermaus of its determination that further conciliation efforts would be "futile or non-productive."

On March 9, the EEOC Complaint was filed against corporate defendants Die Fliedermaus and Le Bar Bat, alleging that Die Fliedermaus' managerial and other employees, including but not limited to its Owner(s), its General Manager (Cerrone), its Director of Banquets (Kelly), and its Executive Chef (Azoulay), subjected a class of female employees to a pattern or practice of frequent and pervasive sexual harassment, which included unwelcome sexual touching, sexually explicit comments, and sexual propositions. It is alleged that although female employees protested and complained about the harassment, Le Bar Bat made no efforts to prevent or eradicate the continuing behavior.

The EEOC Complaint further alleged that Defendants' managerial and other employees, including but not limited to one of its owners and its General Manager, have subjected and are currently subjecting a class of African-American employees to a pattern or practice of frequent and pervasive racial harassment, which includes unwelcome racially explicit comments. Although African-American employees protested and complained about the harassment, Die Fliedermaus made no efforts to prevent or eradicate the continuing behavior.

The EEOC further alleged that Defendants constructively discharged female and African-American employees by their failure to eliminate the sexually and racially hostile environment.

The EEOC alleged, in addition, that after six employees engaged in a protected activity, the filing of charges of discrimination with the EEOC, Defendants retaliated against at least four employees by removing and utilizing confidential information from their personnel files and distributing derogatory fliers in employees' buildings and neighborhoods. The fliers contained false, highly damaging statements about the employees, including, but not limited to, claims that the employees were prostitutes, drug dealers, and/or child molesters.

On April 2, 1999, the Individual Plaintiffs filed their complaint, alleging redress for violations of their civil rights and alleging violations of Title VII arising out of a hostile work environment, quid pro quo discrimination, racial discrimination as to Hawkes, Holman, and Wade, constructive discharge, retaliation, and a § 1981 violation as to Hawkes, and also alleging violations of the New York State Human Rights Law and the New York City Administrative Code, as well as state law claims for intentional infliction of emotional distress, defamation, and libel per se.

The Defendants' motions to dismiss certain of the causes of action, the motions of Tortoso and Walsh to dismiss for improper service, and the Individual Plaintiffs' motion to intervene in the EEOC Action and to consolidate the two actions, were heard and marked fully submitted on September 15, 1999.

The Instant Motions

A. Die Fliedermaus and Shallo

Defendants Die Fliedermaus and Shallo have moved to dismiss certain claims in the Boggs Action as follows:

(1) The Title VII claims (Counts 1-5 of the Boggs Complaint) for failure to comply with the procedural requirements of Title VII by not obtaining a right to sue letter from the EEOC;

(2) Plaintiff Hawkes' § 1981 claim (Count 6) because she was an at-will employee and has failed to allege a contractual relationship with Le Bar Bat;

(3) The constructive discharge and retaliation claims under the New York State Human Rights Law ("NYSHRL") and the New York City Code (Counts 7-8) for failure to allege (a) that Defendants deliberately acted for the sole purpose of obtaining Plaintiffs' resignations, and (b) that Plaintiffs suffered any adverse employment action as a direct result of their EEOC filings;

(4) The claims for intentional infliction of emotional distress (Count 9) as duplicative of the Individual Plaintiffs' defamation claims or as time-barred;

(5) the claims for intentional infliction of emotional distress (Count 9), for defamation and libel per se (Count 10), and respondeat superior (Count 11), as vicarious liability cannot be imposed against Die Fliedermaus as a matter of law;

(6) any attempt to hold Die Fliedermaus liable for negligence in connection with the allegedly improper conduct as barred by the Worker's Compensation Law.*fn2

Die Fliedermaus and Shallo have also moved to dismiss, or, in the alternative, to stay the EEOC Action on the grounds of the EEOC's failure to obey its statutory duty to conciliate prior to filing suit.

B. Tortoso

Defendant Tortoso has moved to dismiss the claims against him in the Boggs Action as follows:

(1) the NYSHRL claims (Count 7) on the grounds that (a) Plaintiffs cannot allege claims of retaliation or aiding and abetting under this statute, and (b) the current state of New York law on liability;

(2) the New York City Code claims (Count 8) for failure to allege a claim and to meet the statutory ...


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