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HEINEMANN v. HOWE & RUSLING

April 29, 2003

MARION HEINEMANN, PLAINTIFF
v.
HOWE & RUSLING, ET AL., DEFENDANTS.



The opinion of the court was delivered by: David G. Larimer, United States District Judge

DECISION AND ORDER

INTRODUCTION

Plaintiff, Marion Heinemann, commenced this action on April 12, 2002, alleging claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the Equal Pay Act, 29 U.S.C. § 206(d); the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.; the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.; and the New York Human Rights Law ("HRL"), N.Y. Exec. L. § 296 et seq. Plaintiff filed an amended complaint on July 23, 2002, adding a claim under Chapter 63 of the Rochester, New York Municipal Code.*fn1

Plaintiff's claims all relate to alleged discrimination that occurred in connection with her former employment at defendant Howe & Rusling, Inc. ("H & R"), an investment management firm located in Rochester, where plaintiff worked from January 1999 until she was terminated in the Fall of 2001. During plaintiff's employment, H & R was wholly owned by H & R Aquisition Corp., a majority of whose stock was in turn owned by defendant Laidlaw Global Corporation ("Laidlaw"). Defendant Third Security, LLC purchased Laidlaw's ownership interest in H & R Aquisition from Laidlaw in December 2001, after plaintiff had been terminated.

In addition to H & R, Laidlaw and Third Security, plaintiff has sued five individuals (collectively, "the individual defendants"), all of whom were members of H & R's Executive Committee ("the Committee"), which made the decision to terminate plaintiff: Thomas G. Rusling, the president of H & R; Robert B. Wolf, a senior Vice President of H & R; Craig D. Cairns, also a senior Vice President; Barbara MacInnes, who is H & R's operations manager and head of Human Resources; and John K. Bleyaert, H & R's Chief Investment Officer.

By stipulation and order entered on June 28, 2002, plaintiff has withdrawn all her claims against the individual defendants except for her claim under the HRL. The individual defendants have now moved for summary judgment on that one remaining claim against them. Defendants request that the Court either dismiss that claim on the merits, or in the alternative, decline to exercise supplemental jurisdiction over that claim pursuant to 28 U.S.C. § 1367(c).

FACTUAL BACKGROUND

As defendants' motion presents a relatively narrow issue of law concerning individual liability under the HRL, only those facts relevant to the motion will be set forth here. In short, plaintiff alleges that she began working for H & R as a senior portfolio manager in early 1999. Plaintiff alleges that H & R discriminated against her in various ways during her employment.

On October 13, 2001, the Committee (which was made up of the five individual defendants) voted unanimously to terminate plaintiff's employment. Plaintiff was terminated effective November 9, 2001. Plaintiff alleges that her termination was motivated by unlawful discrimination, and in retaliation for her prior complaints of discrimination.

The complaint alleges that "[m]embers of the Executive Committee were responsible for all personnel decisions at the firm, with the approval and concurrence of Laidlaw," Amended Complaint ¶ 19, and that each individual defendant "personally participated in the discrimination against plaintiff." Amended Complaint ¶¶ 10, 12, 14, 16, 18. Defendants agree that the Committee "was responsible for, and made . . . all personnel decisions," including the decision to terminate plaintiff. Affidavit of Thomas G. Rusling (Docket #5) ¶ 10. Defendants contend, however, that no single member of the Committee, acting alone, had the power to hire or fire employees. Rusling Aff. ¶ 11.*fn2

DISCUSSION

The HRL provides, in Exec. L. § 296(1), that it is unlawful for an "employer" to discriminate against an employee because of her membership in a class protected under the statute. In Patrowich v. Chemical Bank, 63 N.Y.2d 541, 542 (1984), the New York Court of Appeals examined what is meant by the term "employer" in the HRL and held that "[a] corporate employee, though he has a title as an officer and is the manager or supervisor of a corporate division, is not individually subject to suit with respect to discrimination . . . under New York's Human Rights Law . . . if he is not shown to have any ownership interest or any power to do more than carry out personnel decisions made by others." Following Patrowich, courts have held that an individual who has significant supervisory authority, such as the power to hire and fire employees, can be held liable under the HRL. See, e.g., Cirillo v. Muss Dev. Co., 278 A.D.2d 353, 355 (2d Dep't 2000) (assuming the truth of plaintiff's allegations, "she has sufficiently alleged that Markowitz had the authority to make personnel decisions and salary and benefit determinations. If, in fact, Markowitz had the `power to do more than carry out personnel decisions made by others,' he may be subject to liability under the Human Rights Law") (citing Patrowich and § 296); Lapidus v. New York City Chapter of the New York State Ass'n For Retarded Children, Inc., 118 A.D.2d 122, 131 (1st Dep't 1986) (lower court erred in dismissing HRL claim against individual defendant who "was personally charged with hiring and firing and thus did more than carry out personnel decisions made by others"); Samide v. Roman Catholic Diocese of Brooklyn, 194 Misc.2d 561 (Sup.Ct. Queens County 2003) (denying motion to dismiss HRL claim against individual, since plaintiff sufficiently pleaded that individual defendant had power to do more than carry out personnel decisions made by others).

In the case at bar, plaintiff alleges that each of the individual defendants directly participated in the alleged discrimination against her by, inter alia, voting to terminate her. Defendants contend that this activity is insufficient to give rise to individual liability because none of the Committee members had any authority in this regard except as a group, acting jointly. In other words, defendants argue that because the Committee members only acted collectively, they did not individually have the requisite power to make employment decisions affecting plaintiff.

I find this argument unpersuasive. Patrowich did not hold that an individual must have power to make employment decisions alone, and, if Patrowich were so interpreted, it would be all too easy for individuals with supervisory authority ...


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