sexual harassment complaint against Mitchell. As plaintiff points out, if
violating the policy justified mandatory termination, and if plaintiff
indicated she had violated the policy, there seems to be little reason as
to why Beney did not discharge her on the spot. There would seem to be
even less reason for Beney to direct plaintiff to Florida for more
training. Doing this would make little sense if it was mandatory to fire
her. Progressive does contend it did not learn of the alcohol violation
until the September 18th meeting in which it was determined that no
sexual harassment occurred and that plaintiff would be terminated. Taking
the facts in the light most favorable to plaintiff, however, it must be
assumed that Beney learned of the violation prior to this time. In any
event, the dispute give rises to a factual question as to when
Progressive learned of the violation. Without resolution of such a
factual question, summary judgment is inappropriate.
Progressive points to an analogous alcohol policy, one prohibiting
Progressive employees from consuming alcohol before operating Progressive
vehicles, and alleges it has "even fir[ed] an employee for the
consumption of a single alcoholic beverage on New Year's Eve." While
Progressive's concern for the safety of drivers and pedestrians alike on
a holiday infamous for its festive celebration is laudable, it provides
no support for their position, and, in fact, seems to do the opposite. If
Progressive is going to fire an employee for an even slight deviation
such as the one mentioned, surely the more rampant and continuous
violation of plaintiff deserved immediate termination.
In addition, plaintiff has produced the termination notifications
issued to Mitchell and plaintiff. Neither form contains the reason for
the terminations and, in fact, the space specifically reserved for
designating the reason, called the "reason code," was left blank on both
D. Aiding and Abetting Under the NYHRL
In plaintiff's seventh cause of action, she alleges that defendants
Mitchell, Beney, and Barbagallo are personally liable for violating the
"aiding and abetting" section, § 296(6), of the NYHRL. That section
makes it an unlawful discriminatory practice "for any person to aid,
abet, incite, compel or coerce the doing of any of the acts forbidden
under [the NYHRL], or attempt to do so. N.Y. Exec. Law § 296(6).
Plaintiff claims that Mitchell aided and abetted the alleged sexual
harassment violation, and that Beney and Barbagallo incur liability not
only for aiding and abetting in the alleged sexual harassment of and
retaliation against the plaintiff, but also for "their participation in
the sham investigation of plaintiff's complaint."
While employees escape individual liability under the general
discrimination provision of the NYHRL, N.Y. Exec. Law § 296(1), "a
defendant who actually participates in the conduct giving rise to a
discrimination claim may be held personally liable under [§ 296(6),
the aiding and abetting provision]." Hasbrouck v. Bankamerica Housing
Serv., Inc., 105 F. Supp.2d 31, 39 (N.D.N.Y. 2000) (quoting Tomka, 66
F.3d at 1317). "In order to hold an individual liable under [the aiding
and abetting provision], however, plaintiff must also show that the
individual aided or abetted `a primary violation of the [NY]HRL committed
by another employee or the business itself'." Rivera, supra (quoting
McIlwain v. Korbean Int'l Investment Corp., 896 F. Supp. 1373, 1383
(S.D.N.Y. 1995)) (emphasis added).
An argument can be made, and indeed has been alluded to, that
Mitchell, Beney, and Barbagallo, as primary actors
in the alleged sexual
harassment and retaliatory discharge, cannot be liable under § 296(6)
because they cannot aid and abet their own actions. Some courts have
agreed. See, e.g., DeWitt v. Lieberman, 48 F. Supp.2d 280, 294 (S.D.N.Y.
1999); Falbaum v. Pomerantz, 891 F. Supp. 986 (S.D.N.Y. 1995). Others,
following Tomka, have not, see, e.g., Hasbrouck, 105 F. Supp.2d at 39;
Lewis v. Triborough Bridge and Tunnel Authority, 77 F. Supp.2d 376, 382
n. 7 (S.D.N.Y. 1999), including some New York state courts, causing a
split among appellate divisions. See Steadman v. Sinclair, 636 N.Y.S.2d 325,
326 (1st Dept. 1996) (following Tomka); but see Trovato v. Air Express
Int'l, 655 N.Y.S.2d 656 (2d Dept. 1997) (declining to follow Tomka).
Perhaps the most elegant description of the logical conundrum created by
the holding in Tomka was set forth by the court in Perks v. Town of
The Second Circuit apparently disagrees [with the
notion that one cannot be liable as an aider and
abettor because one cannot aid and abet his or her own
actions]. In Tomka, plaintiff "alleged that each of
the individual defendants assaulted her and thereby
created a hostile work environment." The court held
that that allegation was "sufficient to satisfy §
296(6)." Perhaps the rationale behind the court's
decision was that each of the three individual
defendants were aiding and abetting their fellow
defendants' violations. If this is true, individuals
may not be liable under Tomka for aiding and abetting
their own violations of the [NY]HRL. Perhaps the
rationale behind the decision was that the employees'
actions imposed liability on the employer and
therefore the employees were aiding and abetting the
employer's violation of the [NY]HRL, and not their
own. We must wait for the Second Circuit to revisit
the issue so that we may gain a firmer understanding
of its rationale in Tomka and better understand the
intended breadth of its application.
96 F. Supp.2d 222, 228 n. 2 (E.D.N.Y. 2000) (internal citations
omitted). Because the New York Court of Appeals has yet to resolve the
issue, Tomka remains binding precedent,*fn11 and Mitchell, Beney, and
Barbagallo may be personally liable under § 296(6) as aiders and
abettors of Progressive's alleged unlawful conduct.
Nevertheless, this is not to say that Mitchell, Beney, and Barbagallo
incur instant liability. Plaintiff must first prove all of the elements
of the substantive discrimination claims, in this case, either
retaliation or sexual harassment, and that the individual defendants
actually participated in the discrimination. Beattie v. Guilderland
Central School District, 124 F. Supp.2d 802, 805 (N.D.N.Y. 2000) (citing
Tomka, 66 F.3d at 1317). As noted, material factual questions, that must
by the jury, preclude a determination as a matter of law as to
whether the elements of the substantive NYHRL violations have been met.
With respect to the sexual harassment claim, it is not disputed that
Mitchell "actually participated" in the alleged sexual harassment, and
plaintiff has raised at least a factual issue as to whether Beney and
Barbagallo participated in the investigation.*fn12 Reasonable minds
could conclude that Beney and Barbagallo initiated the investigation, and
were kept apprised of the progress. Barbagallo contends he was not
"personally involved" in the investigation, but plaintiff has presented
sufficient evidence so that the determination is properly reserved to the
jury, not the court. Further, it is admitted that both were present
during a conference call in which Buttacavoli presented her investigation
to Progressive executives, and the executives, including Beney and
Barbagallo, concluded that no sexual harassment had occurred. With
respect to the retaliatory termination claim, at the very least a factual
question remains as to whether Beney and Barbagallo "actually
participated" in the decision to discharge plaintiff. Whether such
participation was wrongful is for the jury to decide, and is not a matter
for the court on summary judgment.
E. Overtime Compensation
In plaintiff's ninth and tenth causes of action, she alleges being owed
compensation for overtime worked pursuant to the Fair Labor Standards Act
("FLSA"), 29 U.S.C. § 207, and the New York Labor Law § 663.
Because neither plaintiffs nor defendants direct this court to authority
mandating a different analysis under New York State law and the FLSA,
"the ensuing analysis focuses solely on federal law, but applies equally
to Plaintiff's claims under the FLSA and New York State law." Debejian
v. Atlantic Testing Laboratories, Ltd., 64 F. Supp.2d 85, 87 n. 1
(N.D.N.Y. 1999) (further finding that "[r]eview of New York State
regulations at 12 N.Y.R.C.R.R. Part 142 reveals that they are
substantially similar to the federal scheme.") (internal citations
As there is no dispute that Progressive falls within the purview of the
FLSA, it is required to pay its employees overtime wages, at the rate of
time and a half, for any hours worked over forty in a single week. See
29 U.S.C. § 207. This duty to pay, however, is not automatic. Congress
has expressly provided for several exemptions, covering classes of
employees, to an employer's duty to pay overtime compensation. See
29 U.S.C. § 213.
These exemptions are narrowly construed against the employers seeking
to assert them and their application limited to those establishments
plainly and unmistakably within their terms and spirit," Bilyou v.
Dutchess Beer Distributors, Inc., 300 F.3d 217, 222 (2d Cir. 2000)
(quoting Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 4
L.Ed.2d 393 (1960)), with the burden of establishing such applicability
resting squarely upon the employer's shoulders. Idaho Sheet Metal Works,
Inc. v. Wirtz, 383 U.S. 190, 206, 86 S.Ct. 737, 15 L.Ed.2d 694 (1966).
Among the exemptions from the duty to pay overtime is for those
employees who are "employed in a bona fide executive, administrative, or
professional capacity." 29 U.S.C. § 213(a)(1). The Department of Labor
has issued regulations and interpretations regarding this exemption
referred to as "the administrative exemption").*fn13 In
making a determination as to whether an employee fits into the
administrative exemption, the regulations mandate satisfactory
establishment of both a "salary test" and a "duties test."
29 C.F.R. § 541.2(e)(2). Because there is no dispute that plaintiff
is paid a regular salary and that such salary exceeds $250 per week, the
salary test is satisfied, and the "duties test" applied in this case is
commonly referred to as a "short test." Under the short test, an employer
must establish that: (1) an employee's "primary duty consists of either
the "performance of office or nonmanual work directly related to the
management policies or general business operations of the employer or the
employer's customers," and (2) "the performance of such duty includes
work requiring the exercise of discretion and independent judgment."
29 C.F.R. § 541.214(a); Ahern v. State of New York, 807 F. Supp. 919,
925 (N.D.N.Y. 1992).
1. Administrative Exemption Prong One: "Directly related to
management policies or general business operations"
With respect to the first prong of the short test, work "directly
related to management policies or general business operations" describes
work "relating to the administrative operations of a business."
29 C.F.R. § 541.205(a). Ahren, 807 F. Supp. at 925. "The
administrative operations of the business include the work performed by
so-called white-collar employees engaged in `servicing' a business as,
for example, advising the management, planning, negotiating, representing
the company, purchasing, promoting sales, and business research and
control." 29 C.F.R. § 541.205(b). Courts have interpreted "servicing"
the employer to mean work "ancillary to an employer's principal
production activity." Martin v. Cooper Elec. Supply Co.,