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Russo-Lubrano v. Brooklyn Federal Savings Bank

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK


January 12, 2007

DONNA RUSSO-LUBRANO, PLAINTIFF,
v.
BROOKLYN FEDERAL SAVINGS BANK, AND MARC LENO, RICHARD A. KIELTY, AND JOSEPH RAUCCI, AS AGENTS OF BROOKLYN FEDERAL SAVINGS BANK AND IN THEIR INDIVIDUAL CAPACITIES, DEFENDANTS.

The opinion of the court was delivered by: Sifton, Senior Judge.

MEMORANDUM OPINION AND ORDER

On February 15, 2006, plaintiff Donna Russo-Lubrano filed a complaint against Brooklyn Federal Savings Bank ("BFSB" or "the bank") and employees Marc Leno, Richard Kielty, and Joseph Raucci,*fn1 as agents of BFSB and in their individual capacities, alleging that the defendants were liable for damages on the following grounds: (I) discrimination on the basis of sex, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 ("Title VII"); (II) retaliation, in violation of Title VII, 42 U.S.C. § 2000e-3(a); (III) discrimination on the basis of pregnancy, in violation of Title VII, 42 U.S.C. § 2000e(k); (IV) conspiracy, in violation of the Civil Rights Act of 1871, 42 U.S.C. § 1985(3); (V) discrimination on the basis of age, in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 623 ("ADEA"); (VI) discrimination on the basis of sex, in violation of the Equal Pay Act of 1963, 29 U.S.C. § 206 et seq.; (VII) discrimination, in violation of the Employee Retirement Income Security Act, 1963, 29 U.S.C. § 1000 et seq. ("ERISA"); (VIII) discrimination on the basis of sex, in violation of New York State Executive Law § 296; (IX) retaliation, in violation of New York State Executive Law § 296; (X) discrimination on the basis of pregnancy, in violation of New York State Executive Law § 296; (XI) discrimination on the basis of gender, in violation of New York City Administrative Code § 8-107 and § 8-502; (XII) retaliation, in violation of New York City Administrative Code § 8-107 and § 8-502; (XIII) discrimination on the basis of pregnancy, in violation of New York City Administrative Code § 8-107 and § 8-502; (XIV) intentional infliction of emotional distress and intentional interference with employment contract under New York common law. Now before this Court is defendants' motion to dismiss Counts (I), (II), (IV), (V), (VII), (VIII), (IX), (XII), and (XIV) in their entirety and Counts (I), (II), (III), (V), (VI), (VII), (VIII), (IX) and (X) as to the individual defendants. For the reasons set forth below, defendants' motion is granted, with leave to amend the complaint as noted.

Background

The following facts are drawn from the complaint and viewed in the light most favorable to the plaintiff, the non-moving party. See Patel v. Searles, 305 F.3d 130, 135 (2d Cir. 2002).

From 1984 until February 2005 plaintiff was employed by BFSB. Throughout her career, she was consistently rated an excellent employee and regularly received the highest pay increases available, as well as bonuses which "exceeded the usual limits." Complaint, § 17. In 2004, plaintiff, who was forty years old at the time, made known to the defendants that she was pregnant. She requested and received the standard twelve week maternity leave.*fn2 At that point she was an Assistant Vice President, was vested in the company pension plan and had an active 401(k) account. See 26 U.S.C. § 401(k).

After announcing her pregnancy, plaintiff was subjected to discriminatory comments and treated in a hostile and negative manner by her supervisors, based on her gender, pregnancy and status as a working mother. This resulted in a "hostile working environment and affected the terms and conditions of her employment." Complaint, § 22.

Plaintiff's last day of work before her maternity leave was October 8, 2004. At all times she kept her employers (in particular, defendants Leno and Kielty) informed that she would be returning to work after her leave. Plaintiff was due to return to work on January 19, 2005.

On October 21, 2003, plaintiff gave birth by caesarean section and suffered medical complications. The child was placed in a prenatal intensive care unit and upon discharge required oxygen treatment six times daily, administered by the plaintiff. Plaintiff made her employers, including Leno and Raucci, aware of the situation by phone and fax.

Twice in December 2004, while still on leave, plaintiff returned to BFSB to assist on projects which she knew she would be involved in upon her return. On January 3, 2005, plaintiff's child became very ill with a respiratory syncytial virus that required weekly doctor visits. The doctor also directed that the infant not be taken out of the home or interact with others to prevent its contracting illnesses. As a result, the infant's baptism was cancelled and child care could not be provided by third parties. Plaintiff promptly notified Leno of these issues. Plaintiff also informed the bank that she would be filing for disability payments through her private insurer and which would last through February 2005. Plaintiff later filed for disability with New York State which also approved her claim and she made her employer aware of the approval. During this period of time, plaintiff spoke to defendant Leno at least once a week and, among other things, discussed her health and the health of her child.

On February 22, 2005, plaintiff was terminated by BFSB. Plaintiff's bonus for 2004 was reduced pro-rata based on her maternity leave.*fn3 In addition, plaintiff's termination precluded her from "fully" availing herself of the employee stock benefit plan which resulted from the bank's becoming a public company, a process which had begun before she was terminated. Complaint, § 35.

Defendants never formally provided plaintiff with a reason for plaintiff's termination. However, in conversations with unidentified representatives of the defendants after her termination, plaintiff was informed that she was fired "due to her child's health and her status as a working mother";*fn4 to plaintiff's knowledge, no male employees of the bank have been terminated due to their children's health or their status as a working parent. Complaint, § 30.

Procedural History

On March 15, 2005, plaintiff filed a verified complaint with the Equal Employment Opportunity Commission ("EEOC") and the New York Division of Human Rights Equal Employment Opportunity Commission, alleging discrimination and retaliation by the employees of BFSB. After requesting a 'right to sue' letter from the EEOC, plaintiff was provided with such a letter on October 21, 2005. Plaintiff filed suit in this Court on February 15, 2006. Defendants filed the present motion to dismiss on May 19, 2006.

Discussion Jurisdiction

The court has federal question jurisdiction over Counts I, II, III, IV, V, VI and VII pursuant to 28 U.S.C. § 1331. As to the state and local law claims, this Court may exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367.

Motion to Dismiss

Defendants seek dismissal of certain counts of plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. In considering a motion pursuant to Rule 12(b)(6), a 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)(internal citations and quotations omitted), although "mere conclusions of law or unwarranted deductions" need not be accepted. First Nationwide Bank v. Helt Funding Corp., 27 F.3d 763, 771 (2d Cir. 1994). In a motion to dismiss, "[t]he 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). Dismissal is appropriate only when it "appears beyond a 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). This rule "is to be applied with particular strictness when the plaintiff complains of a civil rights violation." Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991). Additionally, a complaint should be dismissed under Rule 12(b)(6) if a court finds that the plaintiff's claims are barred as a matter of law. Conopco, Inc. v. Roll Intern., 231 F.3d 82, 86 (2d Cir. 2000).

I. Fair Notice: Counts I, V and VIII

In Counts I, V, and VIII, plaintiff claims discrimination on the basis of her gender and age. Defendants argue that plaintiff's complaint fails to allege sufficient facts to provide them with fair notice.

In Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002), the Supreme Court ruled on the pleading standards for employment discrimination cases under Title VII. There, the Court found that plaintiffs need only satisfy the "simple requirements" of Federal Rule of Civil Procedure 8(a) for a "short and plain statement of the claim."*fn5 Id. at 512-13. "This simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims." Id. at 512. So long as the complaint "give[s] the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests" it is sufficient. Id. (internal citations and quotations omitted). In Swierkiewicz, which was brought under Title VII and the ADEA, the Court found that since the complaint "detailed the events leading to [plaintiff's] termination, provided relevant dates, and included the ages and nationalities of at least some of the relevant persons involved with his termination," the pleading was sufficient.

However, as the Second Circuit has recently held, the holding in Swierkiewicz does not mean that "[p]laintiffs bear no burden at the pleading stage." Amron v. Morgan Stanley Inv. Advisors Inc., 464 F.3d 338, 343 (2d Cir. 2006). Rather, "a plaintiff must allege, as the Supreme Court has held, those facts necessary to a finding of liability . . . . [and] a plaintiff's allegations, accepted as true, must be sufficient to establish liability." Id. at 343-44. In other words, "while the pleading standard is a liberal one, bald assertions and conclusions of law will not suffice." Id. at 344 (internal citations and quotations omitted); see Whyte v. Contemporary Guidance Serv.s, 2004 WL 1497560, at *3 (S.D.N.Y. 2004) (noting that "[f]air notice is lacking when the complaint is so 'confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised'" and finding that where the plaintiff in a Title VII case fails to "provide notice of the relevant facts underlying [the] discrimination claims and specifically how his age, gender, race, and national origin played a factor in the alleged disparate treatment," notice is insufficient and a motion to dismiss should be granted) (quoting Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988)); see also Prince v. Cablevision Sys. Corp., 2005 WL 1060373, at *10 (S.D.N.Y. 2005) (finding that where plaintiff in Title VII case had failed to allege "any conduct by co-workers [other than one incident] . . . that occurred in the workplace that would support [the] conclusory allegation of a 'sexualized atmosphere,'" the claims must be dismissed for failure to provide fair notice of the "facts and grounds which could support them"); Valle v. Bally Total Fitness, 2003 WL 22244552, at *6 (S.D.N.Y. 2003); Straker v. Metropolitan Transit Authority, 333 F.Supp.2d 91, 102 (E.D.N.Y. 2004) (a count "which contains no facts supporting the grounds upon which [the] claim of race discrimination rests, must . . . be dismissed").

1) Count I: Gender Bias and Sex Discrimination Plaintiff alleges in Count I that she was discriminated against in violation of 42 U.S.C. § 2000e-2 due to her "gender, pregnancy and status as a working mother."*fn6 Complaint, § 40. In support of this allegation, plaintiff states that she was subject to "repeated situations involving gender bias, and sexual discrimination," including "negative comments regarding her gender, pregnancy and status as working mother." Complaint, §§ 39(a), 41. She also alleges that she "was subjected to discriminatory comments and treated in a hostile and negative manner by her supervisors based upon her status as a pregnant woman" after she announced her pregnancy and that she was "informed that [her] termination was due to . . . her status as a working mother." Complaint, §§ 22, 30.

Title VII suits can be based on either a "disparate treatment" claim, where the plaintiff alleges that a specific discriminatory employment action was taken on the basis of impermissible considerations, or a "hostile work environment" claim, where the plaintiff alleges that the work environment was severely abusive as to her sex, race, etc. Galvez v. New York Mortg. Co., LLC, 2005 WL 2124112, at *5 (S.D.N.Y. 2005);*fn7 see National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002) ("Hostile environment claims are different in kind from discrete acts" such as termination").

In the present case, plaintiff's allegations in Count I allege both that her gender "was used as the basis for adverse employment decisions" and that the "adverse actions . . . had the effect of creating a hostile, intimidating and offensive work environment." Complaint, §§ 40, 41. Count I thus conflates a "disparate treatment" claim for termination on the basis of gender and the different claim of a "hostile work environment."*fn8

These claims are distinct and should not be alleged in a single count under Rule 10(b) of the Federal Rules of Civil Procedure.*fn9 See Gonzalez v. Police Com'r Bratton, 2000 WL 1191558, at *20 (S.D.N.Y. 2000) ("Conceptually, this [disparate treatment] claim is distinct from that of hostile environment sexual harassment, which, while also necessarily constituting a type of discrimination grounded on gender, requires different pleading and proof than a disparate treatment claim"); Harris v. Radioshack Corp., 2002 WL 1907569, at *2 (S.D.Fla. 2002) ("If Plaintiff desires to assert discrimination claims under various theories, these claims must be asserted in separate counts in accordance with Fed.R.Civ.P. 10(b)"). Accordingly, Count I is dismissed with leave to amend within 30 days. See Fed.R.Civ.P. 15(a) ("leave shall be freely given when justice so requires"); Whyte, 2004 WL 1497560 at *5 (granting leave to amend where complaint contained insufficient factual basis under Swierkiewicz).*fn10

2) Count V: Age Discrimination

Count V alleges age discrimination in violation of the ADEA.*fn11 As in Count I, this count also alleges both "adverse employment decisions" on the basis of the plaintiff's age and the creation of a "hostile, intimidating and offensive work environment."*fn12 Complaint, §§ 57, 58. For the same reasons discussed above, this count fails to comply with the pleading requirements of Rule 10 and is therefore dismissed, with leave to amend within 30 days.*fn13

3) Count VIII: Gender Bias and Sex Discrimination

Count VIII alleges that plaintiffs violated New York State Executive Law § 296 by discriminating on the basis of gender and sex.*fn14 As the complaint notes, this "law also makes it unlawful to create an atmosphere which is abusive and hostile." Complaint, § 73; See Constantine v. Kay, 792 N.Y.S.2d 308, 311 (N.Y.Sup.Ct. 2004) ("Sexual discrimination which establishes a hostile work environment constitutes a violation of . . . Executive Law § 296") (citing San Juan v. Leach, 717 N.Y.S.2d 334, 336(N.Y. App. Div. 2000). "The standards for proving discrimination under Section 296 of the New York Executive Law are the same as under Title VII . . . . Accordingly, the New York Executive Law inquiry is subsumed within the Title VII analysis." Lucas v. South Nassau Communities Hosp., 54 F.Supp.2d 141, 146 (E.D.N.Y. 1998).

Since Count VIII, like Counts I and V, fails to distinguish between a claim for unlawful termination and a claim on the basis of a hostile work environment, this count is also dismissed, with leave to amend within 30 days.

II. Retaliation Claim - Counts II, IX and XII

In July 2006 the parties stipulated that these counts have been withdrawn in their entirety. Accordingly, the motion to dismiss these counts is moot.

III. Intracorporate Conspiracy Doctrine - Count IV

At oral argument on January 11, 2007, the parties stipulated that this count had been withdrawn in its entirety. Accordingly, the motion to dismiss this count is moot.

IV. ERISA Claim - Count VII

At oral argument on January 11, 2007, the parties stipulated that this count had been withdrawn in its entirety. Accordingly, the motion to dismiss this count is moot.

V. Intentional Infliction of Emotional Distress - Count XIV

In Count XIV, plaintiff contends that the defendants, in violation of New York state law, "intentionally inflicted the aforesaid acts of gender bias, sexual discrimination, pregnancy discrimination and retaliation upon the plaintiff, with malice, and without legal, economic, business or social justification or excuse, and did so for the sole purpose of causing her emotional distress and anguish." Complaint, § 97.*fn15

Under New York State law, claims of Intentional Infliction of Emotional Distress ("IIED") have a one year statute of limitations.*fn16 N.Y.Civ.Prac.L. & R. § 215(3); Neufeld v. Neufeld, 910 F.Supp. 977, 981 (S.D.N.Y. 1996). Plaintiff filed her complaint on February 15, 2006 and contends that the conduct included the actual termination, which occurred on February 22, 2005, and therefore her claim was filed within the limitations period.*fn17 However, to present a valid claim for IIED, plaintiff must allege a wrongful act that occurred within the limitations period which could itself serve as the basis for an IIED claim. Cahill v. Northeast Sav., F.A., 1993 WL 313633, at *12 (N.D.N.Y. 1993) (noting that even where the doctrine of continuous tort applies, which allows a court to look at events outside the limitations period if they are part of a continuing pattern of activity that extends into the limitations period, there must be an independently actionable violation which is not barred by the statute of limitations); Neufeld, 910 F.Supp. at 983 (noting that the continuous tort doctrine only applies when actionable conduct occurred within the limitations period); Bonner v. Guccione, 916 F.Supp. 271, 277 (S.D.N.Y. 1996) ("the conduct that falls within the limitations period must be in and of itself actionable conduct and not merely the effect of prior tortious conduct"). Therefore, in the present case, plaintiff's termination, which is the only alleged conduct which occurred within the limitations period, must be independently sufficient to state a claim for IIED.

In New York, a claim for IIED has four elements: "(1) extreme and outrageous conduct, (2) intent to cause severe emotional distress, (3) a causal connection between the conduct and the injury, and (4) severe emotional distress." Bender v. City of New York, 78 F.3d 787, 790 (2d Cir. 1996). Since the alleged conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community," Fischer v. Maloney, 43 N.Y.2d 553, 557 (N.Y. 1978), satisfying the 'outrageousness' element "is difficult, even at the pleadings stage." Fahmy v. Duane Reade, Inc., 2005 WL 2338711, at *7 (S.D.N.Y. 2005) (internal citations and quotations omitted). Particularly in the employment context, "New York courts are exceedingly wary of claims for intentional infliction of emotional distress . . . because of their reluctance to allow plaintiffs to avoid the consequences of the employment-at-will doctrine by bringing a wrongful discharge claim under a different name." Mariani v. Consol. Edison Co. of New York, Inc., 982 F.Supp. 267, 275 (S.D.N.Y. 1997) (noting that there is no tort claim for wrongful discharge in New York State); see also Fahmy, 2005 WL 2338711 at *7. Federal courts applying New York law regularly dismiss IIED claims. See Gerzog v. London Fog Corp., 907 F.Supp. 590, 604 (E.D.N.Y. 1995) (noting that it is almost exclusively in cases which involve inappropriate sexual conduct, "and more significantly, battery," where courts have declined to dismiss IIED claims); Mariani, 982 F.Supp. at 275 (citing cases). To survive a motion to dismiss, "[t]he conduct alleged must be such that it can be fairly characterized as egregious, utterly despicable, heartless or flagrant. Acts which merely constitute harassment, disrespectful or disparate treatment, a hostile environment, humiliating criticism, intimidation, insults or other indignities . . . [are] not sufficiently outrageous." Lydeatte v. Bronx Overall Economic Development Corp., 2001 WL 180055, at *2 (S.D.N.Y. 2001); see also Freedom Calls Found. v. Bukstel, 2006 WL 2792762, at *3 (E.D.N.Y. 2006) ("Courts in the Second Circuit, when considering . . . emotional distress claims under New York law, have noted that even if a defendant has acted with an intent which is tortious or even criminal, or has intended to inflict emotional distress, or has even engaged in conduct that has been characterized by malice, or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort, there can be no claim if the conduct at issue is not utterly reprehensible").

Even if plaintiff's allegations in her complaint true, as I must presume they are, and she was terminated on the basis of her gender, age, pregnancy and the illness of her child, they fail to meet the threshold for outrageous conduct. See Belanoff v. Grayson, 471 N.Y.S.2d 91 (N.Y.A.D. 1984)(summary judgment granted against plaintiff who was given negative evaluations, suspended from work and ultimately fired due to alleged discrimination on the basis of her sex and marital status and retaliation for opposing unlawful practices); Leibowitz v. Bank Leumi Trust Co. of New York, 548 N.Y.S.2d 513, 521 (N.Y.A.D. 1989) (upholding dismissal of IIED claim which was based on the use of "deplorable and reprehensible" ethnic and racial slurs); Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, 303 (dismissing IIED complaint alleging, among other things, termination based on plaintiff's age, as falling "far short" of the required standard); Realmuto v. Yellow Freight Sys., Inc., 712 F.Supp. 287 (S.D.N.Y. 2000) (plaintiff's allegations that he was discharged for "illicit reasons" motivated by his age do not establish a claim for IIED); Sigmon v. Parker Chapin Flattau & Klimpl, 901 F.Supp. 667 (S.D.N.Y. 1995)(summary judgment granted on IIED claim where plaintiff claimed she was discriminated against, and later fired, because she was a woman, became pregnant, and had a baby); Lydeatte v. Bronx Overall Economic Development Corp., 2001 WL 180055, at *2 (S.D.N.Y.,2001) (dismissing IIED claim alleging discrimination based on race, which led ultimately to termination, even though such allegations might be sufficient for an employment discrimination claim); Harvender v. Norton Co., 1997 WL 793085, at *4 (N.D.N.Y. 1997)(IIED claim dismissed where defendant, upon learning that plaintiff was pregnant, placed her on immediate unpaid leave and told her that if her condition did not change within twelve weeks, at which point she would still be pregnant, she would lose her job); Stella Stylianou v. St. Luke's/Roosevelt Hosp. Center, 902 F.Supp. 54, 56 (S.D.N.Y. 1995) (two year pattern of harassment and humiliation insufficient for IIED claim); Silberstein v. Advance Magazine Publishers, Inc., 988 F.Supp. 391, 392 (S.D.N.Y. 1997) ("discrimination on the basis of gender or condition of pregnancy . . . is intolerable . . . [but] insufficient to lift plaintiff's case over the hurdle established by the New York Court of Appeals); Martin v. Citibank, N.A., 762 F.2d 212, 220 (2d Cir. 1985) (employee who was allegedly given a polygraph based on race failed to establish a claim for IIED "despite unacceptability of racial discrimination in civilized society"); Benjamin v. N.Y.C. Dept. of Health, 2002 WL 485731, at *1 (S.D.N.Y. 2002) (IIED claim dismissed where plaintiff alleged a long pattern of discrimination based on national origin, including "mimicking Plaintiff's accent and cultural mannerisms in front of the staff, sabotaging Plaintiff's job efforts, and accusing Plaintiff of falsehoods").*fn18 The alleged conduct here which occurred within the limitations period was termination on the basis of improper motivations, which, though possibly sufficient for an employment discrimination claim, does not rise to the level of outrageousness required for an IIED claim in New York. Accordingly, plaintiff has failed to state a claim which would support a finding of IIED and this count must be dismissed.*fn19

VI. Interference with Employment Contract - Count XIV

To the degree that Count XIV deals with an implied employment contract, the claim has been withdrawn by stipulation. Accordingly, the motion to dismiss is moot.

VII. Individual Liability under Title VII, the PDA and the ADA -Counts I, II, III and V

By stipulation, the claims against individual defendants have been withdrawn as to Counts I, III and V and the entire claim under Count II has been withdrawn. Accordingly, the motion to dismiss these counts is moot.

VIII. Individual Liability under New York Executive Law - Counts VIII, IX, and X

By stipulation, Count IX has been withdrawn and the motion to dismiss that count is moot. Defendants argue that New York Executive Law § 296 does not provide for individual liability and, therefore, the remaining claims against the individual defendants under § 296 in Count VIII (gender bias and sex discrimination) and Count X (pregnancy discrimination) must be dismissed.

According to the New York Court of Appeals:

[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 based on age or sex 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.*fn20

Patrowich v. Chemical Bank, 63 N.Y.2d 541, 542 (N.Y. 1984); see also Patane v. Clark, 435 F.Supp.2d 306, 312 (S.D.N.Y. 2006) (motion to dismiss denied as to defendants who "ostensibly had the authority to hire and fire" the plaintiff). However, the Second Circuit has sided with courts which "distinguished Patrowich by holding that a defendant who actually participates in the conduct giving rise to a discrimination claim may [also] be held personally liable under [subsection 6 of] the HRL," which makes it unlawful to aid or abet any of the practices discussed in the statute, even if that employee lacks the authority to hire and fire.*fn21 Tomka v. Seiler, 66 F.3d 1295, 1317 (2d Cir. 1995) (finding that the district court incorrectly dismissed a claim under § 296 where plaintiff alleged that "individual defendants assaulted her and thereby created a hostile working environment"), abrogated on other grounds by Burlington Indus. v. Ellerth, 524 U.S. 742 (1998) (emphasis added); see also Patane, 435 F.Supp.2d at 313 (noting that although some state courts have disagreed with Tomka, federal courts in this circuit are bound to follow the Second Circuit's ruling on this matter); Perks v. Town of Huntington, 251 F.Supp.2d 1143, 1160 (E.D.N.Y. 2003) ("[a]lthough this ruling has been criticized, it is binding upon" district courts in this circuit); Dawson v. County of Westchester, 351 F.Supp.2d 176, 199 (S.D.N.Y. 2004) (defendant who allegedly created a hostile work environment by "distributing copies of the letters to other officers, making inappropriate comments to plaintiffs, staring at plaintiffs in a disturbing manner and engaging in inappropriate conversations with others within plaintiffs' hearing" could be sued in his individual capacity); Feingold v. New York, 366 F.3d 138, 158 (2d Cir. 2004) (allegations that plaintiff was assigned a disproportionate workload on the basis of his race were sufficient to create triable issues of fact as to whether the defendants actually participated in the conduct giving rise to the HRL claim, even though the defendants "merely had the ability to review and comment on the plaintiff's performance"). Thus, under Second Circuit law, this claim may proceed against individual defendants if (1) they have an ownership interest, (2) they have the power to hire and fire or (3) they aided and abetted the discriminatory conduct. Since the complaint does not allege that the individual defendants had the power to hire and fire or that they had an ownership interest,*fn22 individual liability must rest on an aiding and abetting theory.

With regards to Count VIII, as discussed above, it is at this point not clear what unlawful conduct the plaintiff is alleging, and without knowing that information, it cannot be determined whether the actions allegedly taken by the individual defendants aided and abetted the unlawful conduct.*fn23 Only if and when the complaint is amended to reflect the specific unlawful activity charged can I determine whether the complaint also alleges that any or all of these employees are alleged to have aided and abetted in unlawful activity.*fn24 Accordingly, the motion to dismiss on this ground is granted with leave to amend within 30 days.

With regards to Count X, plaintiff again fails to specify what unlawful activity she is alleging. The complaint merely says that the individual defendants "discriminated against the plaintiff on the basis of pregnancy, childbirth, and/or related medical conditions" in violation of § 296. Complaint, § 82. There is no way for this court to determine if she is alleging a hostile workplace claim or an unlawful termination claim and, accordingly, no way to evaluate whether the factual allegations made elsewhere in the complaint support an aiding and abetting theory of individual liability. Accordingly, Count X is dismissed with leave to amend within 30 days.

Conclusion

For the reasons set forth above, the motion to dismiss is granted in part and denied in part without prejudice. Where noted, the plaintiff is given leave to amend the complaint within 30 days of the filing of this Opinion. The Clerk is directed to transmit a copy of the within to the parties.

SO ORDERED.

Charles P. Sifton United States District Judge (electronically signed)


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