United States District Court, S.D. New York
May 6, 2005.
COURTNEY PRINCE, Plaintiff,
CABLEVISION SYSTEMS CORPORATION, d/b/a Madison square Garden, a corporation; JASON VOGEL, an individual; and RYAN HALKATT, an individual, Defendants.
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
Defendants Cablevision Systems Corporation ("Cablevision"),
Madison Square Garden ("MSG"), a limited partnership, Jason Vogel
("Vogel") and Ryan Halkatt ("Halkatt") (collectively, the
"Defendants") have moved pursuant to Rule 12(b)(6), Fed.R. Civ.
P., to dismiss in part the Complaint of Courtney Prince
("Prince") alleging employment discrimination in violation of
federal, state, and municipal statute, and common law tort. For
the reasons set forth below, the motion is granted in part.
Prince filed her Complaint on October 18, 2004. The First Cause
of Action asserts claims pursuant to 42 U.S.C. §§ 2000e et
seq. ("Title VII") against MSG for sexual harassment, wrongful
discharge, and retaliation. The Second and Third Causes of Action
assert state*fn1 and municipal law*fn2 claims against
all defendants for sexual harassment, wrongful discharge, and
retaliation. The Fourth Cause of Action asserts state law assault
and battery claims against Vogel. The Fifth and Sixth Causes of
Action assert aiding and abetting claims against Halkatt pursuant to the NYSHRL and
the NYCHRL. On November 30, 2004, the Defendants answered the
Pursuant to Fed.R.Civ.P. 12(b)(6), the Defendants moved on
November 30, 2004 to dismiss in part the First, Second, and Third
Causes of Action on the grounds that the allegations are
insufficient to support claims of hostile work environment and to
impute liability to MSG. The Defendants also sought dismissal of
the state and municipal law claims against the individual
defendants on the following alternative grounds: (1) that the
state and municipal claims are insufficient as a matter of law to
support individual liability, and (2) that supplemental
jurisdiction should not be exercised over the claims.
The Defendants have not moved to dismiss those portions of the
First, Second and Third Causes of Action that allege that MSG
retaliated against Prince in violation of federal, state, and
The motion was heard and marked fully submitted on January 19,
The Parties Prince is a professional figure skater who was employed as a
member and captain of the Ranger City Skaters (the "Skaters").
The Skaters are ice skating cheerleaders of the New York Rangers
(the "Rangers"), a professional hockey team. (See Compl. ¶ 1).
MSG is a limited partnership and the former employer of Prince.
(See id. ¶¶ 18, 21).
Vogel is an employee of MSG and deputy director of public
relations for the Rangers. (See id. ¶ 23.)
Halkatt, who was Prince's immediate supervisor, is employed by
MSG as the director of game-day presentation for the Rangers.
(See id. ¶ 22.)
The following facts are drawn from the allegations contained in
the Complaint. All well-pleaded allegations are accepted as true
for the purposes of this motion. See Chambers v. Time Warner,
Inc., 282 F.3d 147, 152 (2d Cir. 2002). The following statements
do not constitute findings of the Court.
Prince was hired by MSG in the fall of 2001 to be a member of
the Skaters, which was formed in 2002. (See Compl. ¶ 21.) She
was made captain of the team in August, 2003. (See id. ¶ 25.) In this capacity, Prince's duties included communicating
to the Skaters the directives of management. (See id.)
MSG featured the Skaters on the Rangers website and as part of
the team's public relations program. (See id. ¶ 39.) Among
their duties, Prince and other Skaters were required to appear at
certain post-game events, a duty for which they received no
additional compensation. (See id. ¶ 28.)
It was MSG's official policy that the Skaters appear sexually
alluring. (See id. ¶ 48.) MSG apparently encouraged the
Skaters to stuff their bras to enhance their breast size and to
follow strict diet regimens that included use of diet pills in
some instances. (See id. ¶¶ 47, 49, 50.) Although MSG told
the Skaters not to fraternize with Rangers team members, the
Skaters were required or expected to fraternize with MSG
management at post-game events. (See id. ¶¶ 28, 35, 51.) MSG
management, including Halkatt, took steps to ensure that certain
Skaters who were "fancied" by MSG managers attended these events,
and he directed Prince to facilitate this directive. (See id.
¶ 35.) Underage Skaters have attended these events, at which
alcohol was served. (See id. ¶ 36.) In some instances, MSG
management personnel engaged in sex talk with the Skaters. (See
id. ¶ 51.)
Prince, other Skaters, and members of MSG management were in
attendance at one of these post-game events on December 22, 2003, at a bar called Lobby. (See id. ¶ 28). Prince and other
Skaters agreed to leave Lobby and go to a bar called Daddy-O's.
(See id. ¶ 24.) Vogel and another male accompanied Prince to
Daddy-O's. (See id. ¶ 30.)
At Daddy-O's, Vogel attempted to kiss Prince, told her that he
wanted to have sex with her and other Skaters, and solicited her
to go into the public bathroom to have sex with him. (See id.
¶ 31.) Prince rejected these advances. (See id.) When Prince
realized no other Skaters were arriving at Daddy-O's, she left.
(See id. ¶ 32.)
Following these events, Prince advised her teammates what had
happened with Vogel and warned them to stay away from him. (See
id. ¶ 33.) One teammate said that an MSG manager had previously
warned her about Vogel. (See id. ¶ 34.) Not long afterward,
MSG learned that Prince had made allegations about a member of
MSG management. (See id. ¶ 37.) On January 22, 2004, MSG
alleged that Prince: (1) had disparaged MSG management and (2)
had falsely accused a member of management of being a "sexual
predator." (See id.) Thereafter, MSG and Halkatt did not call
Prince for work, and they deleted references to her from the
Rangers website. (See id. ¶¶ 38, 39.)
Prince filed a charge with the Equal Employment Opportunity
Commission ("EEOC") claiming sexual harassment and retaliation, and the EEOC issued a finding of Probable Cause and
an Order of Conciliation. (See id. ¶¶ 2-3, 11-12.)
As the Defendants have previously filed an answer in this
action, their motion to dismiss under Rule 12(b)(6) is untimely.
See Fed.R.Civ.P. 12(b) (stating that "[a] motion making any
of these defenses [under Rule 12(b)] shall be made before
pleading if a further pleading is permitted"). However, the
Second Circuit has held that "a motion to dismiss for failure to
state a claim . . . that is styled as arising under Rule 12(b)
but is filed after the close of pleadings, should be construed by
the district court as a motion for judgment on the pleadings
under Rule 12(c)." Patel v. Contemporary Classics of Beverly
Hills, 259 F.3d 123, 126 (2d Cir. 2001) (footnote omitted)
(noting that district courts within the Second Circuit as well as
courts of appeals in other circuits have adopted the same
conclusion). The Defendants' motion to dismiss under Rule
12(b)(6) thus will be construed as a motion for judgment on the
pleadings under Fed.R.Civ.P. 12(c) and, as such, is deemed
timely. See Fed.R.Civ.P. 12(c) (stating that "[a]fter the
pleadings are closed but within such time as not to delay the
trial, any party may move for judgment on the pleadings"). The
standard for granting a Rule 12(c) motion for judgment on the
pleadings "is identical to that of a Rule 12(b)(6) motion for failure to state a claim." Patel, 259 F.3d at 126 (citing
Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 368, 644 (2d
Cir. 1998). A. 12(c) Standard
In considering a motion to dismiss pursuant to Rule 12(c),
Fed.R.Civ.P., the court should construe the complaint liberally,
"accepting all factual allegations in the complaint as true, and
drawing all reasonable inferences in the plaintiff's favor."
Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002)
(citing Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001)).
"The issue is not whether a plaintiff will ultimately prevail but
whether the claimant is entitled to offer evidence to support the
claims." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375,
378 (2d Cir. 1995) (quoting Scheuer v. Rhodes, 416 U.S. 232,
236 (1974)). Dismissal is only appropriate when "it appears
beyond doubt that the plaintiff can prove no set of facts which
would entitle him or her to relief." Sweet v. Sheahan,
235 F.3d 80, 83 (2d Cir. 2000).
The Supreme Court has clarified the standard for dismissal as
it relates to employment discrimination claims. In Swierkiewicz
v. Sorema N.A., 534 U.S. 506 (2002), the Court, in reviewing the
Second Circuit's use of a heightened pleading standard for
discrimination claims brought under Title VII and the Age
Discrimination in Employment Act (ADEA), held that a plaintiff
bringing an employment discrimination claim is required only to
comply with the liberal rules for notice pleading set forth in
Fed.R.Civ.P. 8(a)(2). See id. at 507. The plaintiff must
only provide "a short and plain statement of the claim showing that
the pleader is entitled to relief," Fed.R.Civ.P. 8(a)(2), and
"[s]uch a statement must simply `give the defendant fair notice
of what the plaintiff's claim is and the grounds upon which it
rests.'" Id. (quoting Conley v. Gibson, 355 U.S. 41, 47
B. Title VII/NYSHRL/NYCHRL Framework
1. The Title VII Disparate Treatment Claims
In the First Cause of Action, Prince alleges, inter alia,
that MSG sexually harassed and discharged her in violation of
Title VII. The Second Circuit has stated that:
a plaintiff may establish a claim of disparate
treatment under Title VII either (1) by showing that
[s]he has suffered an adverse job action under
circumstances giving rise to an inference of
discrimination on the basis of race, color, religion,
sex, or national origin, or (2) by demonstrating that
harassment on one or more of these bases amounted to
a hostile work environment.
Feingold v. New York, 366 F.3d 138
, 149 (2d Cir. 2004) (quoting
Raniola v. Bratton, 243 F.3d 610
, 617 (2d Cir. 2001)).
With respect to disparate treatment claims, Title VII provides,
in pertinent part, as follows:
[i]t shall be an unlawful employment practice for an
employer (1) to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of
such individual's race, color, religion, sex, or
national origin; or
(2) to limit, segregate, or classify his employees or
applicants for employment in any way which would
deprive or tend to deprive any individual of
employment opportunities or otherwise adversely
affect his status as an employee, because of such
individual's race, color, religion, sex, or national
42 U.S.C. § 2000e-2(a).
2. The Title VII Retaliation Claim
The First Cause of Action also asserts that MSG retaliated
against Prince in violation of Title VII. With respect to
retaliation, Title VII provides, in pertinent part, that:
[i]t shall be an unlawful employment practice for an
employer to discriminate against any of his employees
. . . because [such employee] has opposed any
practice made an unlawful employment practice by this
subchapter, or because he has made a charge,
testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing under this
42 U.S.C. § 2000e-3(a). 3. The NYSHRL and NYCHRL Claims
The Second, Third, Fifth, and Sixth Causes of Action assert
claims of sexual harassment, discharge and retaliation in
violation of the NYSHRL and NYCHRL. "[S]ince claims under the
NYSHRL [and NYCHRL] are analyzed identically to claims under . . .
Title VII, the outcome of an employment discrimination claim
made pursuant to the NYSHRL [or NYCHRL] is the same as it is
under . . . Title VII" and need not be addressed separately.
Smith v. Xerox Corp., 196 F.3d 358, 363 n. 1 (2d Cir. 1999)
(citing Leopold v. Baccarat, Inc., 174 F.3d 261, 264 n. 1 (2d
Cir. 1999)); see also Mack v. Otis Elevator Co.,
326 F.3d 116, 122 n. 2 (2d Cir. 2003) ("`Our consideration of claims
brought under the state and city human rights laws parallels the
analysis used in Title VII claims.'") (quoting Cruz v. Coach
Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir. 2000)).
C. The Complaint Is Dismissed With Prejudice As To
Despite the fact that Prince has stated that she was employed
by MSG, she has asserted employment discrimination claims against
Cablevision. The Court takes judicial notice of the following
facts, which are matters of public record: (1) Madison Square
Garden, L.P. is a limited partnership organized pursuant to the
laws of the State of Delaware, and (2) Cablevision Systems
Corporation is a corporation organized pursuant to the laws of
the State of Delaware. See, e.g., Blue Tree Hotels Inv.
(Canada), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc.,
369 F.3d 212 (2d Cir. 2004) (stating that in the context of a
12(b)(6) motion, a court may consider public records that are
outside the pleadings). In short, MSG and Cablevision are
separate legal entities.
"[A]s a matter of policy, courts presume the separateness of
legally distinct corporate entities." Darden v. DaimlerChrysler
N.A. Holding Corp., 191 F. Supp. 2d 382, 395 (S.D.N.Y. 2002)
(dismissing Title VII claim where plaintiff failed to demonstrate
a basis for treating two separate entities as a single employer).
Therefore, in order to state a viable Title VII claim against
Cablevision (a parent entity) based on the conduct of MSG (its
subsidiary), Prince must make allegations concerning one or more
of the following factors: "(1) interrelation of operations, (2)
centralized control of labor relations, (3) common management,
and (4) common ownership or financial control." Cook v.
Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240 (2d Cir. 1995).
The second of these factors i.e., centralized control of
labor relations is accorded particular weight by courts of this
district. See, e.g., Toriola v. New York City Transit
Authority, No. 02 Civ. 5902 (RJH), 2005 WL 550973, at *5
(S.D.N.Y. Mar. 9, 2005); Parrish v. Sollecito,
280 F. Supp. 2d 145, 157 (S.D.N.Y. 2003).
Here, Prince has alleged no facts to justify overcoming the
presumption that Cablevision and MSG are separate entities. The Complaint states that Prince was hired by MSG. There is no
allegation that Cablevision was Prince's employer. Nor is there
any allegation that Cablevision exerted centralized control over
MSG's labor relations policies and decisions or took any other
action that would give rise to Title VII liability pursuant to
the Cook factors. In the absence of any such allegations, the
Complaint must be dismissed as to Cablevision. See id.
Prince has suggested that an amended complaint may provide a
basis for retaining Cablevision as a party. Based on the
pleadings to date, such an outcome seems dubious. Therefore,
Prince's claims against Cablevision are dismissed with prejudice.
D. The Title VII/NYSHRL/NYCHRL Harassment Claims Are
In the First Cause of Action, Prince asserts, inter alia,
that MSG is liable for sexual harassment in violation of Title
VII.*fn3 In the Second and Third Causes of Action, Prince
asserts, inter alia, that MSG, Vogel and Halkatt are liable for
harassment in violation of the NYSHRL and NYCHRL.
All three of these causes of action are based on the theory
that Prince was subjected to a hostile work environment. See
29 C.F.R. § 1604.11(a)(3) (stating that "verbal or physical conduct
of a sexual nature constitute sexual harassment when . . . such
conduct has the purpose or effect of unreasonably interfering
with an individual's work performance or creating an
intimidating, hostile, or offensive working environment").
In this circuit, the elements of a Title VII hostile work
environment claim are well established:
In order to prevail on a hostile work environment
claim, a plaintiff must first show that "the
harassment was "`sufficiently severe or pervasive to
alter the conditions of the victim's employment and
create an abusive working environment. . . .'"
Alfano v. Costello, 294 F.3d 365, 373 (2d Cir.
2002) (citations omitted); see also Oncale v.
Sundowner Offshore Servs., Inc., [523 U.S. 75, 78]
(1998) (stating that a hostile work environment is
created "[w]hen the workplace is 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"). Second, the plaintiff
must demonstrate a specific basis for imputing the
conduct creating the hostile work environment to the
employer. Alfano, 294 F.3d at 373. . . .
Proving the existence of a hostile work environment
involves showing both "objective and subjective
elements: the misconduct shown must be `severe or
pervasive enough to create an objectively hostile or
abusive work environment,' and the victim must also subjectively
perceive that environment to be abusive." Id. at
374 (quoting Harris v. Forklift Sys., Inc.,
[510 U.S. 17, 21] (1993)).
Feingold, 366 F.3d 138
, 149-50 (2d Cir. 2004).
Prince has alleged a single instance of harassment occurring
off company premises and an unspecified number of occasions of
inappropriate sex talk. Specifically, she alleges that on
December 22, 2003, after attending a party at a bar, she, Vogel
and another male voluntarily left the party and went to another
bar. At the second bar, Vogel allegedly made sexual advances
toward Prince, solicited her for sex, and told her that he wanted
to have sex with other women on the team. He tried to kiss her
and put his tongue down her throat. Both Vogel and the other man
told Prince they wanted to go into the bathroom and have sex with
her. Prince rejected Vogel's alleged advances, waited to see if
any of the other Skaters were coming to the bar, and then left
the bar by herself when no other Skaters arrived. Prince has also
alleged that MSG managers routinely engaged in inappropriate sex
talk with certain Skaters, both in their offices and also at
MSG-sponsored post-game parties and gatherings.
1. Prince Has Properly Alleged A Nexus Between The Alleged
Conduct And Her Work Environment The Supreme Court has stated that in order for conduct to give
rise to a hostile work environment, a nexus must exist between
the alleged conduct and the work environment. See Harris v.
Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993); see also
Carter v. Caring for the Homeless, 821 F. Supp. 225, at 228,
230 (S.D.N.Y. 1993) (stating that plaintiff's allegations of
harassment, including an incident that occurred off work
premises, were not related to his employment, and were,
therefore, insufficient to state a hostile work environment
Here, Prince provides the requisite nexus by alleging that
attendance at post-game events was considered part of her job.
2. The Alleged Conduct At Issue Was Not Severe Or Pervasive
Enough To Support A Hostile Or Environment Claim
Even if a sufficient nexus to the work environment has been
alleged, the allegations must still satisfy the objective
requirement that the conduct at issue be "`severe or pervasive
enough to create an objectively hostile or abusive work
environment,'" Alfano v. Costello, 294 F.3d 365, 374 (2d Cir.
2002) (quoting Harris, 510 U.S. at 21); see also Perry v.
Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997). A canvas of
relevant decisions from this Circuit and beyond indicates that
Prince's allegations fail to satisfy this objective requirement. In Quinn v. Green Tree Credit Corp., 159 F.3d 759 (2d Cir.
1998), the Second Circuit affirmed the dismissal of a Title VII
hostile work environment claim where the plaintiff's supervisor
told her she had been voted the "sleekest ass" in the office and
had "deliberately" touched her breasts with the papers in his
hand. In so ruling, the court reasoned that while the conduct is
"obviously offensive and inappropriate," it was not "of
sufficient severity or pervasiveness as to `alter the conditions
of her employment.'" Id. at 768 (internal citation omitted).
In Thomas v. Westchester County Health Care Corp.,
232 F. Supp. 2d 273 (S.D.N.Y. 2002), the plaintiff alleged that a doctor
affiliated with the defendant's dental program, in which the
plaintiff worked, had engaged "in a long history of physical and
sexual abuse," which culminated in the doctor's grabbing and
squeezing her buttocks. The final event allegedly took place at a
party held in a neighboring town that was not related to, or on
the property of, the defendant. Id. at 277. After concluding
that there was no long history of abuse, and that the only
"encounter" was on the evening of the alleged sexual assault, the
court dismissed the plaintiff's claims. Id. at 279-80. In
granting defendant's motion to dismiss, the Court concluded:
[Plaintiff] could prove no set of facts to establish
that such a brief incident, which was not followed by
any further sexual comments or touchings, could be
objectively viewed as sexual harassment in the
workplace. Indeed, the incident did not occur during
the work hours or on work grounds, but rather after work at an
Id. at 280.
Similarly, in O'Dell v. Trans World Entm't Corp.,
153 F. Supp. 2d 378, (S.D.N.Y. 2001), the plaintiff alleged: (1) that
she had been repeatedly asked out on dates by a fellow store
manager, (2) that the store manager had made comments about her
appearance (including that he "liked" certain clothes plaintiff
wore); (3) that the employee had sent her numerous e-mails
professing his love for her; and (4) that the store manager
called her at work and at home, gave her gifts, and played her a
song she found offensive. Id. at 386-87. This repeated conduct,
occurring in the work environment, was held insufficient as a
matter of law to establish a claim. Id. at 386.
Courts have held that conduct far more egregious than that
alleged here was insufficient as a matter of law to establish a
hostile work environment, even when such conduct occurred in the
workplace. See, e.g., Benette v. Cinemark U.S.A., Inc.,
295 F. Supp. 2d 243, 247 (W.D.N.Y. 2003) (manager's constant use of
the word "fuck" and comments regarding female employees having a
"nice ass" or "big tits" not severe or pervasive); Forts v. City
of New York Dep't of Corrections, No. 00 Civ. 1716 (LTS), 2003
WL 21279439, at *6-*7 (S.D.N.Y. June 4, 2003) (several incidents,
including comment about "sex in all positions," a bondage poster showing men and women, and a co-worker touching plaintiff's
shoulder and running away, not severe or pervasive); Gregg v.
N.Y. State Dep't of Tax'n & Fin., No. 94 Civ. 1408 (MBM), 1999
WL 225534, at *12 (S.D.N.Y. Apr. 19, 1999) (ten to fifteen
allegedly inappropriate conversations, four instances of
allegedly offensive touching, and repeated invitations to meals,
drinks, and such over three to four months were not "sufficiently
severe or pervasive"); Lucas, 54 F. Supp. 2d at 148 (brushing
up against plaintiff on three occasions, touching her hand, back
or shoulder on five to seven occasions, suggesting that plaintiff
"wanted to go to bed with [harasser], asking plaintiff the color
of plaintiff's underwear on two to three occasions not sufficient
to constitute a hostile work environment); Grossman v. The Gap,
Inc., No. 96 Civ. 7063 (RPP), 1998 WL 142143, at *5 (S.D.N.Y.
Mar. 25, 1998) (repeatedly asking plaintiff out on dates,
following her around the store asking her to model a bathing
suit, and making one sexually suggestive comment insufficient).
Other than the post-game incident involving Vogel, the only
other allegation relating to the work environment is that
unidentified managers routinely engaged in "inappropriate sex
talk" with unidentified Skaters, on unspecified occasions. (see
Compl. ¶ 51.) "Sex talk" is far from a term of art and fails to
establish a pervasive and hostile environment. Prince has argued that her allegations concerning a hostile
work environment are sufficient to survive Defendants' motion in
light of the Swierkiewicz decision. Prince's argument that
Swierkiewicz poses an insurmountable obstacle to Defendants'
12(b)(6) motion is unavailing. Even after Swierkiewicz, courts
have dismissed hostile work environment claims at the pleadings
stage where, as here, the alleged conduct was not severe or
pervasive enough to warrant relief. See, e.g., Gourdine v.
Cabrini Med. Ctr., 307 F. Supp. 2d 587, 596 (S.D.N.Y. 2004)
(dismissing claim and holding that alleged course of harassment,
ridicule and criticism, including comment that plaintiff would be
better off marrying a Jewish man rather than an African-American,
was insufficient to establish a hostile work environment claim);
Whyte v. Contemporary Guidance Servs., Inc., No. 03 Civ. 5544
(GBD), 2004 WL 1497560, at *4 (S.D.N.Y. July 2, 2004) (granting
dismissal of Title VII claims pursuant to Rule 12(b)(6)).
Prince also argues that dismissal is inappropriate because
other courts have declined to dismiss hostile work environment
claims based on individual acts. As a general rule, "isolated
remarks or occasional episodes of harassment will not merit
relief under Title VII; in order to be actionable, the incidents
of harassment must occur in concert or with a regularity that can
reasonably be termed pervasive." Tomka v. Seiler Corp.,
66 F.3d 1295, 1305 n. 5 (2d Cir. 1995). Nonetheless, Prince is certainly
correct that "harassment need not persist for a long time to be actionable, if it is sufficiently . . . intense." 3 Lex K.
Larson, Employment Discrimination § 46.05[b] (2d ed. 2003).
Moreover, as stated recently by a court of this circuit,
[i]n some instances, a single act can create a
hostile work environment "if, by itself, it can and
does work a transformation of the plaintiff's
workplace." Alfano v. Costello, 294 F.3d 365, 374
(2d Cir. 2002). Such single acts must be
"extraordinarily severe." Id. (quoting Cruz v.
Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir.
2000)). Compare Howley v. Town of Stratford,
217 F.3d 141, 154 (2d Cir. 2000) (single instance of
obscene comments by coworker sufficed to create
hostile work environment under Title VII where
comments were loud, prolonged, made in front of "a
large group in which [the plaintiff] was the only
female and many of the men were her subordinates,
"and "included charges that [the plaintiff] had
gained her office of lieutenant only by performing
fellatio."); with Quinn, 159 F.3d 759, 768 (2d
Cir. 1998) (supervisor's comment to plaintiff on one
occasion that "she had been voted the `sleekest ass'
in the office," and his "deliberat[e] touch[ing] [of
her] breasts with some papers that he was holding in
his hand" on another occasion, were inadequate to
support hostile work environment claim).
Brierly v. Deer Park Union Free School Dist.,
359 F. Supp. 2d 275, 293 (E.D.N.Y. 2005).
In terms of its severity, the conduct at issue here (i.e, the
December 22, 2003 incident at Daddy-O's in which Vogel made
sexual advances and attempted to kiss Prince) is more akin to the
conduct at issue in Quinn than that at issue in Howley.
Therefore, it is concluded that this particular single incident
is insufficient as a matter of law to support a hostile work
environment claim. See, e.g., Balance v. Energy Transp.
Corp., No. 00 Civ. 9180 (LMM), 2001 WL 1246586, at *11 (S.D.N.Y. Oct. 18,
2001) (on a motion to dismiss, holding that one incident in which
defendant allegedly untied plaintiff's apron and touched her
buttocks did not "amount to an environment permeated with
discrimination"); Lucas v. S. Nassau Communities Hosp.,
54 F. Supp. 2d 141, 147 (E.D.N.Y. 1998) (dismissing sexual harassment
claims where plaintiff alleged that her supervisor had touched
her on several isolated occasions).
Prince argues that her sexual harassment claim must be viewed
in light of MSG's alleged actions in creating a "sexualized
atmosphere" in which the Skaters were rendered into "objects of
sexual desire." Prince argues that pursuant to a recent Second
Circuit decision, a hostile work environment claim can be
supported based on the fact that MSG permitted this sexualized
environment to persist unabated. See Petrosino v. Bell
Atlantic, 385 F.3d 210 (2d Cir. 2004). The Petrosino court
a reasonable jury could conclude that the persistent
sexually offensive remarks at [the place of
employment] and the graffiti [drawn by plaintiff's
co-workers there] were particularly insulting to
women because these actions cast women in a demeaning
role: as objects of sex-based ridicule and subjects
for sexual exploitation. It is within this context
that the remaining evidence of sexual harassment must
be considered. In this light, plaintiff's sexual
assault by a drunken co-worker within a few months of
joining the . . . department might well be viewed by
a reasonable jury not simply as an isolated incident
but as a tangible extension of the pervasive
demeaning talk to [plaintiff] personally. The assault
communicated to plaintiff that she was perceived, at
least by one co-worker, not as a professional
colleague, but as one more woman available for sexual
exploitation. Id. at 224. In Petrosino, the record contained facts that the
"workplace disparagement of women . . . [was] repeated day after
day over the course of several years without supervisory
intervention. . . ." Id. at 222. Such disparagement included:
(i) crude sexual graffiti, (ii) sexual comments conveying a
profound disrespect for women, and (iii) disparaging sexually
explicit language directed at plaintiff. Id. at 214-15.
In contrast, with the exception of the incident at Daddy-O's,
the Complaint fails to allege a single instance in which Prince
ever heard or otherwise witnessed a single derogatory comment or
other instance of sex-based offensive conduct in the workplace at
any time. Other than Vogel's conduct, the Complaint does not
allege any conduct by co-workers witnessed by Prince that
occurred in the workplace that would support her conclusory
allegation of a "sexualized atmosphere," or that she was present
for, or affected by, any such conduct. Because the hostile
environment claims fail to give fair notice of any facts or
grounds which could support them, these claims are dismissed.
See, e.g., Jackson v. BellSouth Telecomms., 372 F.3d 1250,
1271 (11th Cir. 2004) (stating that Swierkiewicz "did not even
remotely suggest that a pleading could survive dismissal when it
consisted of only the barest of conclusory allegations without
notice of the factual grounds on which they purport to be
based."); Educadores Puertorriquenos en Accion v. Hernandez,
367 F.3d 61, 68 (1st Cir. 2004) ("From [Swierkiewicz] we intuit that . . . the complaint
should at least set forth minimal facts as to who did what to
whom, when, where and why"); Bass v. E.I. Dupont de Nemours &
Co., 324 F.3d 761, 765 (4th Cir. 2003) (stating that "[t]he
words `hostile work environment' are not talismanic, for they are
but a legal conclusion; it is the alleged facts supporting those
words, construed liberally, which are the proper focus at the
motion to dismiss stage").
Furthermore, since Prince has not alleged that she witnessed
any sex-based, inappropriate conduct other than the incident at
Daddy-O's, she has failed to plead sufficient facts to show that
she subjectively perceived the work atmosphere to be
"sexualized," let alone hostile. This defect in her Complaint
provides an independent basis for the dismissal of her harassment
claim. See, e.g., Alfano, 294 F.3d at 374 (stating that for
a hostile work environment to be actionable, the victim must also
subjectively perceive the environment to be hostile).
Because the Complaint fails to give Defendants fair notice of
the grounds upon which Prince's claim of a "sexualized
atmosphere" rests, this context cannot be used to transform a
single inappropriate incident in a bar into the culmination of a
course of workplace conduct. Furthermore, Prince has failed to allege adequately that "a
specific basis exists for imputing the conduct that created the
hostile environment to the employer." Mack v. Otis Elevator
Co., 326 F.3d 116, 122 (2d Cir. 2003), cert. denied,
124 S. Ct. 562 (2003) (citations omitted). Prince's argument for
imputing liability to MSG is that the Court must infer from the
Complaint that MSG was aware of prior instances of inappropriate
conduct by Vogel and that MSG therefore should have taken steps
to prevent any repeat of such conduct. It is true that Prince has
alleged that an unnamed Skater told her that "John Rossco,"
Vogel's supervisor, had warned her about Vogel, thus implying
knowledge on the part of MSG. (See Compl. ¶ 34.)
However, is no allegation that Vogel ever engaged in any prior
improper conduct at any time, that any such conduct occurred in
the MSG workplace, or that MSG had knowledge of any such prior
conduct. In order to allege that liability can be imputed to MSG,
Prince must give MSG and Vogel fair notice of the grounds for the
imputation of such liability.
As to the only other basis for imputing liability to MSG
(i.e., that once it learned of the alleged harassment it did
nothing about it), there are no facts in the Complaint upon which
relief could be granted. The Complaint acknowledges that an
investigation was immediately initiated. (See Compl. ¶¶ 1, 42,
43.) There is no allegation that there was no complaint
procedure, or that no action was taken when MSG learned of the conduct at
issue. Therefore, the allegations are insufficient to impute
liability to MSG on this basis. E. The Termination Claims Are Dismissed As Duplicative Of
The Retaliation Claims
In the First, Second and Third Causes of Action, Prince alleges
that she was terminated in violation of Title VII, NYSHRA and
NYCHRA. Disparate treatment claims such as these i.e., those
based on adverse employment actions are analyzed pursuant to
the test announced in McDonnell Douglas Corp. v. Green,
411 U.S. 792, (1973). In order to establish a prima facie case of
discrimination on this basis, a plaintiff must show: (1) that he
or she is a member of a protected class, (2) that he or she was
qualified for the position in question, (3) that he or she
suffered an adverse employment action, and (4) that the adverse
employment action occurred under circumstances giving rise to an
inference of discrimination. See id. at 802; Terry v.
Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003); Collins v. New York
City Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002); Weinstock
v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000).
There are no allegations in the Complaint that could support an
inference that the termination occurred in circumstances giving
rise to an inference of discrimination. Moreover, as pled, the
termination claims are duplicative of the retaliation claims. F. The Retaliation Claims Against Halkatt and Vogel Are
The Second and Third Causes of Action assert NYSHRL/NYCHRL
retaliation claims against Halkatt. "To establish a prima
facie case of . . . retaliation, a plaintiff must show that
`(1) she was engaged in [a protected] activity . . .; (2) the
employer was aware of the plaintiff's participation in the
protected activity; (3) the employer took adverse action against
the plaintiff; and (4) a causal connection existed between the
plaintiff's protected activity and the adverse action taken by
the employer.'" Carchidi v. Kenmore Development,
123 Fed. Appx. 435, 436 (2d Cir. 2005) (quoting Gordon v. New York City Bd. of
Educ., 232 F.3d 111, 116 (2d Cir. 2000)).
Since there are no allegations that either Halkatt or Vogel (1)
had an ownership interest in MSG, or (2) had the power to hire or
fire Prince, these allegations fail as a matter of law. See
Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995)
(stating that "the New York Court of Appeals held that an
employee is not individually subject to suit under [the NYSHRL]
as an employer `if he is not shown to have any ownership interest
or any power to do more than carry out personnel decisions made
by others.'") (quoting Patrowich v. Chemical Bank,
63 N.Y.2d 541, 542, 483 N.Y.S.2d 659, 473 N.E.2d 11 (1984)). Moreover,
since neither Halkatt nor Vogel is alleged to have participated
in the adverse job action against Prince, the retaliation claims asserted
against them fail as a matter of law.
G. The Aiding and Abetting Claims Against Halkatt Are
The Fifth and Sixth Causes of Action assert NYSHRL/NYCHRL
aiding and abetting claims against Halkatt. In support of these
claims, the Complaint alleges that Halkatt engaged in the
issuing directives to the Skaters through Prince.
(See Compl. ¶ 25.)
instructing Prince to urge other Skaters to attend
post-game parties. (See id. ¶ 28.)
telling Prince to make sure certain Skaters
attended after-game events. (See id. ¶ 35.)
telling Prince that she was not needed when she
asked if she should report for work. (See id. ¶
taking away the cookies in the Skaters' locker room
because he said they were getting too fat. (See
Prince contends that the basis for naming Halkatt as an aider
and abettor is his alleged participation in discrimination, but
no discrimination by Halkatt or participation in discrimination
by Halkatt is alleged in the Complaint. In the Complaint, MSG,
not Halkatt, is alleged to have terminated Prince's employment.
(See id. ¶¶ 30, 31, 42.) In her opposition papers, Prince
concedes that MSG terminated her, and that Halkatt merely confirmed the action
taken by MSG.
The Second Circuit has held that pursuant to the aider and
abettor provisions of the NYSHRL, "a defendant who actually
participates in the conduct giving rise to a discrimination claim
may be held personally liable." Tomka, 66 F.3d at 1317. Here
the conduct giving rise to the retaliation claims was MSG's
alleged retaliation against Prince for complaining of Vogel's
conduct at the bar. There is no allegation that Halkatt
participated in this conduct. Accordingly, the aiding and
abetting claims against Halkatt are dismissed.
H. Prince Has Stated Assault and Battery Claims Against
The Fourth Cause of Action asserts assault and battery claims
against Vogel based on his conduct at Daddy-O's on the night of
December 22, 2003. Under New York law, "an assault is an
intentional attempt, displayed by violence or threatening
gesture, to do injury to, or commit a battery upon, the person of
another." 6A Allan Schwartz, New York Jurisprudence 2d § 1
(Assault Civil Aspects) (2003). Under New York law, "[a]
battery is an intentional wrongful physical contact with another
person without consent. Even a touching of a person constitutes a
battery if done without consent and in a rude, violent, and angry
or insolent manner." Id. Based on the facts alleged, Prince has stated claims against
Vogel for assault and battery. Furthermore, the exercise of
supplemental jurisdiction over these state law claims is
appropriate. As the Second Circuit has stated:
Under 28 U.S.C. § 1367(a), federal courts have
supplemental jurisdiction to hear state law claims
that are so related to federal question claims
brought in the same action as to "form part of the
same case or controversy under Article III of the
United States Constitution." A state law claim forms
part of the same controversy if it and the federal
claim "derive from a common nucleus of operative
fact." Cicio v. Does, 321 F.3d 83, 97 (2d Cir.
2003) (quoting City of Chicago v. Int'l Coll. of
Surgeons, 522 U.S. 156, 165 (1997)).
Briarpatch Ltd. V. Phoenix Pictures, Inc., 373 F.3d 296
(2nd Cir. 2004).
Here, the assault and battery claims derive from the same
nucleus of operative facts that gave rise to the retaliation
claims, and the factors identified in 28 U.S.C. 1367(c) militate
in favor of the exercise of jurisdiction over these state law
Prince's retaliation claims against MSG pursuant to Title VII,
the NYSHRL, and the NYCHRL were not the subject of Defendants'
motion to dismiss the Complaint in part. Defendants' motion is
denied with respect to the Complaint's Fourth Cause of Action.
Defendants' motion is otherwise granted. Leave to file an amended
complaint within twenty (20) days is granted.
It is so ordered.