While alleging that he was discriminated against on the basis of his
sex, and because of his age, Smith also claims "sex plus age" and "age
plus sex" discrimination. "Sex plus" discrimination has been widely
recognized by the courts. See, e.g., Phillips e. Martin Marietta Corp.,
400 U.S. 542, 544, 91 S.Ct. 496, 27 L.Ed.2d 613 (1971); Fisher v. Vassar
College, 70 F.3d 1420, 1448 (2d Cir. 1995) (Fisher I) ("The Supreme Court
has adopted the proposition that sex considered in conjunction with a
second characteristic — `sex plus' — can delineate a
"protected group" and can therefore serve as the basis for a Title VII
suit."), on reh'g in banc, 114 F.3d 1332 (2d Cir. 1997), cert. denied,
522 U.S. 1075, 118 S.Ct. 851, 139 L.Ed.2d 752 (1998). This doctrine
recognizes that it is impermissible to treat men with an additional
characteristic more or less favorably than women with the same additional
C. New York City and State Human Rights Laws
Although the applicable federal civil rights statutes do not provide a
cause of action for individual liability, New York courts otherwise
require the same showing for claims brought under the HRL and federal sex
discrimination claims brought under Title VII, and age discrimination
claims brought under the ADEA. See Abdu-Brisson v. Delta Air Lines,
Inc., 239 F.3d 456, 466 (2d Cir. 2001) (HRL follows ADEA); Leopold v.
Baccarat, Inc., 174 F.3d 261 n. 1 (2d Cir. 1999) (HRL follows Title
VII); Tomka v. Seiler, 66 F.3d 1295, 1305 n. 4 (2d Cir. 1995); Miller
Brewing Co. v. St. Div. of Human Rights, 66 N.Y.2d 937, 498 N.Y.S.2d 776,
489 N.E.2d 745 (1985).
The New York City Human Rights Law ("City HRL") renders it unlawful for
"an employer or an employee or agent thereof, because of the actual or
perceived age . . . [or] gender . . . of any person to discharge from
employment such person or to discriminate against such person," N.Y.C.
Admin. Code. § 8-107(1)(a), and further provides that "[i]t 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
chapter, or to attempt to do so," N.Y.C. Admin. Code § 8-107(6). A
prerequisite for holding a defendant liable under these provisions is that
the defendant at issue must have actually engaged in a discriminatory
act. See Stallings v. U.S. Electronics, Inc., 270 A.D.2d 188,
707 N.Y.S.2d 9 (N.Y.App.Div. 2000).
The New York State Human Rights Law ("State HRL") also provides for
individual liability, but limits liability to the plaintiffs "employer"
for discrimination, see N.Y. H.R.L. § 296(1), and to "any person"
for aiding and abetting the employer's discrimination, see N.Y. H.R.L.
§ 296(6).*fn4 New York courts are divided in deciding which
standard of liability to apply under the State HRL. See Ponticelli v.
Zurich American Ins. Co., 16 F. Supp.2d 414, 439 (S.D.N.Y. 1998) ("Two
theories of individual liability have been recognized by courts under the
The first approach uses a "control test," and defines an "employer"
under the State HRL as a person with either an ownership interest in the
company or some form of control over the plaintiffs employment status.
See Patrowich v. Chemical Bank, 63 N.Y.2d 541, 542, 483 N.Y.S.2d 659,
473 N.E.2d 11 (1984).
The second approach allows plaintiffs to pursue actions for aiding and
abetting discrimination pursuant to § 296(6) regardless of control,
as long as the defendant actually participated in the discrimination.
Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995), abrogated on
other grounds, Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118
S.Ct. 2257, 141 L.Ed.2d 633 (1998).
In order to withstand a 12(b)(6) motion in an employment
discrimination case, a plaintiff must only make out a prima facie case of
discrimination. See Dugan v. Martin Marietta Aerospace, 760 F.2d 397,
398-99 (2d Cir. 1985). Here, Smith alleges that he has been the subject
of discrimination and retaliation for reporting discrimination "with
respect to harassment, hostile environment, wages, promotion,
termination, and other terms and conditions of employment," because of
sex, sex plus age, age, or age plus sex. (Compl. ¶¶ 75, 79, 83, 87.)
At a minimum, both the City and State HRL require a plaintiff to allege
that the defendant engaged in a discriminatory act against the plaintiff
in order to withstand a motion to dismiss. See Stallings, 270 A.D.2d 188,
707 N.Y.S.2d 9. That the defendants engaged in or aided and abetted
discriminatory acts aimed at persons other than the plaintiff has no
bearing on Smith's claim that the defendants harassed him, because he has
no standing to assert claims on behalf of non-similarly situated
persons. See, e.g., Sidari v. Orleans County, 174 F.R.D. 275, 283
(W.D.N.Y. 1996) ("the applicable case law requires the conclusion that a
white male corrections officer lacks standing to maintain a claim of
discrimination under Title VII based on conduct by other whites against
blacks or inmates.").
D. Prima Facie Case
1. Hostile Work Environment
A hostile work environment claim can be established by a showing that the
plaintiffs workplace was "permeated with discriminatory intimidation,
ridicule, and insult that is sufficiently severe or pervasive to alter
the conditions of the victim's employment and create an abusive working
environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114
S.Ct. 367, 126 L.Ed.2d 295 (1993) (quoting Mentor Savings Bank, FSB v.
Vinson, 477 U.S. 57, 65, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)); see
also Murray v. New York University College of Dentistry, 57 F.3d 243, 249
(2d Cir. 1995). In order to state a claim for hostile environment
harassment, a complaint must allege conduct severe or pervasive enough to
create a work environment that a reasonable person would find hostile or
abusive, and it must allege that the plaintiff subjectively perceived the
environment to be hostile. Id. at 21-22, 114 S.Ct. 367. "To be
pervasive, the incidents of discrimination must be repeated and
substantially continuous — over a substantial period of time."
Leibovitz v. New York City Transit Authority, 252 F.3d 179, 182-83 (2d
Allegations of harassing acts against other employees may be relevant
to a hostile work environment claim. Leibovitz v. New York City Transit
Authority, 252 F.3d 179, 190 (2d Cir. 2001) ("we recognize that evidence
of harassment directed at other co-workers can be relevant to an
employee's own claim of hostile work environment discrimination.").
However, the other employees targeted must be in the same protected class
as the plaintiff for the hostile work environment claim to withstand a
motion to dismiss. See id. at 186 (holding that plaintiffs hostile work
environment claim was proper because she "is a member of the protected
class that she claims was subjected to discrimination," unlike other
cases in which courts dismissed hostile work environment cases where "the
plaintiff asserted Title VII rights on behalf of a protected class of
employees to which the plaintiff did not belong.").
2. Non-Hostile Work Environment Employment Discrimination
Smith's claims for "harassment wages, promotion, termination, and other
terms and conditions of employment" are governed by a different standard
than his hostile work environment claim. Non-hostile work environment
discrimination claims involve four elements: (1) the plaintiff is a
member of a protected class (2) who was qualified for his position (3)
and suffered an adverse employment action (4) under circumstances giving
rise to an inference of discrimination. See McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Austin
v. Ford Models, Inc., 149 F.3d 148, 152 (2d Cir. 1998). As set forth
above, both the City and State HRL also require Smith to allege that each
individual defendant engaged in some discriminatory act if those claims
are to withstand their motions to dismiss.
An employment action is adverse if it inflicts a "materially adverse
change" in the terms and conditions of the plaintiffs employment. See
Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000).
"A materially adverse change might be indicated by a termination of
employment, a demotion evidence by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, significant diminished
material responsibilities, or other indices . . . unique to a particular
situation." Id. (citation and internal quotations omitted).
To make out a prima facie case for discriminatory retaliation, Smith
must plead each of the following factors: (1)
Smith engaged in a statutorily protected activity; (2) the employer knew
of it; (3) the defendant took "adverse employment action" against him;
and (4) there is a causal connection between the exercise of the
protected activity and the adverse action. See Wanamaker v. Columbian Rope
Co., 108 F.3d 462, 465 (2d Cir. 1997) (retaliation claims brought under
ADEA approached in the same way as claims under Title VII); Feder v.
Bristol-Myers Squibb Co., 33 F. Supp.2d 319, 337 (S.D.N.Y. 1999). Here,
Smith alleges that he was subjected to altered working conditions and
subsequently terminated in retaliation for reporting Gray's fraudulent
accounting and discriminatory conduct toward other AVSC employees, as
well as the sexual propositions he frequently received from Peckman.
Unlike the harassment claim, Smith's discriminatory retaliation claim
may succeed on a theory that the defendants terminated him for reporting
discrimination against others, because the act of reporting is
statutorily protected. See, e.g., Sumner v. U.S. Postal Serv.,
899 F.2d 203, 209 (2d Cir. 1990) (protected activity includes "informal
protests of discriminatory employment practices, including making
complaints to management, writing critical letters to customers,
protesting against discrimination by industry or by society in general,
and expressing support of coworkers who have filed formal charges.").
Finally, a "causal connection may be established either `indirectly by
showing that the protected activity was followed closely by
discriminatory treatment, or through other evidence such as disparate
treatment of fellow employees who engaged in similar conduct, or directly
through evidence of retaliatory animus directed against a plaintiff by
the defendant.'" Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991)
(quoting DeCintio v. Westchester County Med. Ctr., 821 F.2d 111, 115,
cert. denied, 484 U.S. 965, 108 S.Ct. 455, 98 L.Ed.2d 395 (1987)).
II. The Motion to Dismiss the Discrimination Claims is Granted
A. The Hostile Work Environment Discrimination Claims Are Dismissed
Smith's complaint alleges in graphic detail various acts of harassment
Gray committed against "women and minority employees" (Compl. ¶ 16;
see also Compl. ¶¶ 17a-j (enumerating specific discriminatory conduct
against female, Filipino, Egyptian, Jamaican, Indian, and Nigerian
employees)), but fails to allege any specific acts to support the claim
that his work environment was hostile to older white men as a general
matter. The only claim that approaches this showing — "Employees
over the age of 40 have been disproportionately terminated and otherwise
discriminated against by AVSC and its agents" — is insufficient to
support a cause of action for hostile work environment. (Compl. ¶
41.) As such, Smith has failed to state a claim for hostile work
environment discrimination. See Leibovitz v. New York City Transit
Authority, 252 F.3d 179, 186 (2d Cir. 2001).
The hostile work environment component of the first four causes of
action in the First Complaint, and in each cause of action in the Second
Complaint are therefore dismissed with leave to replead.
B. The Non-Hostile Work Environment Discrimination Claims are Dismissed
Against Haws and Pollack
1. Smith Is a Qualified Person Who Falls Within a Protected Class