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Riscili v. Gibson Guitar Corp.

July 10, 2007

DANIEL RISCILI, PLAINTIFF,
v.
GIBSON GUITAR CORP., DEFENDANT.



MEMORANDUM OPINION AND ORDER

Plaintiff Daniel Riscili brings suit against defendant Gibson Guitar Corp ("Gibson") alleging violations of the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-107, and state law torts. Gibson moves to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim on which relief can be granted. For the reasons discussed below, Gibson's motion is GRANTED in part and DENIED in part.

BACKGROUND

The following facts are taken from plaintiff's complaint, which is accepted as true on a Rule 12(b)(6) motion. See Easton v. Sundram, 947 F.2d 1011, 1014--15 (2d Cir. 1991). Plaintiff became an employee of Gibson on November 14, 2001, after Gibson purchased the company that had previously employed him. (Am. Compl. ¶ 1.) On April 2, 2003, at an event sponsored by Gibson in New York City, plaintiff was subjected to harassment by another Gibson employee, Lou Vito, on account of his sexual orientation. (Am. Compl. ¶ 6.) This incident occurred in the presence of other Gibson employees and clients. (Id.) "Plaintiff complained of sexual orientation-motivated" attacks to his employer, yet "little or nothing was done." (Am. Compl. ¶¶ 7, 20.) As a result of the incident, "plaintiff was made to feel uncomfortable at his work and was thereafter harassed." (Am. Compl. ¶ 8.) His work performance deteriorated, and he was eventually terminated on July 31, 2003, "without cause." (Id.)

STANDARD OF REVIEW

A motion to dismiss pursuant to Rule 12(b)(6) may be granted only when "'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45--46 (1957)). In ruling on such a motion, the Court "must accept as true the factual allegations in the complaint, and draw all reasonable inferences in favor of the plaintiff." Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995) (citations omitted). "The issue is not whether a plaintiff is likely to prevail ultimately, 'but whether the claimant is entitled to offer evidence to support the claims.'" Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995) (quoting Weisman v. LeLandais, 532 F.2d 308, 311 (2d Cir. 1976) (per curiam)). The Court is "generally limited to the facts and allegations that are contained in the complaint and in any documents that are either incorporated into the complaint by reference or attached to the complaint as exhibits."*fn1 Blue Tree Hotels Inv. (Can.), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004).

DISCUSSION

Plaintiff states five causes of action. The first three causes of action, pursuant to NYCHRL, allege employment discrimination, a hostile work environment, and unlawful retaliation. Unlike claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., claims under NYCHRL can be premised on the sexual orientation of the employee. See N.Y.C. Admin. Code § 8-107. The remaining two causes of action allege common law claims of intentional infliction of emotional distress and negligent hiring, retention, and supervision.

I. Sexual Orientation Discrimination

Plaintiff's first cause of action alleges discrimination on account of his sexual orientation. The NYCHRL makes it unlawful "for an employer or an employee or agent thereof, because of . . . sexual orientation, . . . to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment." N.Y.C. Admin. Code § 8-107(1)(a). Claims of discrimination under the NYCHRL are subject to the same analysis as claims under Title VII. See Weinstock v. Columbia Univ., 224 F.3d 33, 42 n.1 (2d Cir. 2000). To establish a prima facie claim for such discrimination, a plaintiff must show: (1) that he belonged to a protected class; (2) that he was qualified for the position he held; (3) that he suffered an adverse employment action;*fn2 and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent. See Collins v. New York City Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002). The Supreme Court has recently made clear that the prima facie discrimination case "is an evidentiary standard, not a pleading requirement," and that "the ordinary rules for assessing the sufficiency of a complaint apply." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510--11 (2002). Thus, rather than alleging specific facts, a plaintiff need only provide "a short and plain statement of the claim showing that [he] is entitled to relief," Fed. R. Civ. P. 8(a)(2), and giving "the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests," Conley, 355 U.S. at 47.

Plaintiff alleges that defendants "detrimentally alter[ed] the terms, conditions, and/or privileges of [his] employment." (Am. Compl. ¶ 10.) This statement fails to provide even the minimal notice to defendant required by Conley as to what adverse employment action serves as the basis of the discrimination claim. To the extent plaintiff's claim relies on his termination, he has failed to allege that he was fired on account of his sexual orientation; nor can such causation be inferred from any other allegations in the complaint. Rather, the complaint affirmatively suggests that he was terminated because of his deteriorating work performance, a product of him feeling "uncomfortable at his work" and being "harassed." (Am. Compl. ¶ 8.) By not including even this bare allegation of discriminatory animus, plaintiff has failed to provide the "short and plain statement" required by Rule 8(a) showing that he is entitled to relief. See Gourdine v. Cabrini Med. Ctr., 307 F. Supp. 2d 587, 595 (S.D.N.Y. 2004), aff'd in part, vacated in part, 128 Fed. Appx. 780 (2d Cir. 2005) (dismissing Title VII claim regarding discharge because complaint lacked clear allegation of discriminatory animus and revealed a non-discriminatory explanation for the discharge); cf. Swierkiewicz, 534 U.S. at 514 (finding that allegation that plaintiff "had been terminated on account of his national origin in violation of Title VII" satisfied the requirements of Rule 8(a)). Therefore, the Court grants defendant's motion to dismiss plaintiff's unlawful discrimination claim.

II. Sexual Orientation Harassment

Plaintiff's second cause of action alleges sexual orientation harassment. Under NYCHRL, federal standards are used to determine hostile work environment harassment claims. See Olszewski v. Bloomberg L.P., No. 96 Civ. 3393 (RPP), 1997 U.S. Dist. LEXIS 9654, at * 15 n.3 (S.D.N.Y. July 7, 1997). To prevail on a claim of a hostile work environment, a plaintiff must establish "that the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of employment."*fn3 Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002). In determining whether an environment is sufficiently hostile, courts consider: (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether the conduct was physically threatening; (4) whether the conduct reasonably interfered with plaintiff's work; and (5) what psychological harm resulted. Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426, 437 (2d Cir. 1999) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). Where the hostile environment is created by "comments, slurs, and jokes," there must be "more than a few isolated incidents." Schwapp v. Avon, 118 F.3d 106, 110 (2d Cir. 1997) (citations and internal quotation marks omitted); but see Alfano, 294 F.3d at 374 ("[E]ven a single act can meet the threshold if, by itself, it can and does work a transformation of the plaintiff's workplace. . . . [A] single incident [must be] extraordinarily severe.").

Plaintiff alleges that he "was made to feel uncomfortable at his work and was thereafter harassed," and refers without elaboration to "sexual orientation-motivated assaults by co-workers." (Am. Compl. ΒΆΒΆ 8, 20.) These conclusory allegations do not provide defendant with the minimum notice of the grounds of the harassment claim, as required by Conley. Plaintiff also alleges that he was harassed by Vito at a company-sponsored event because of his sexual orientation. While this allegation is clear and provides defendant with notice of the grounds of plaintiff's claim, it fails to state a claim on which relief can be granted. While undoubtedly distressing to plaintiff, this isolated incident was not "sufficiently severe or pervasive" to sustain a claim of a hostile work environment. See Galvez v. Means, No. 95 Civ. 9479 (MBM), 1996 U.S. Dist. LEXIS 12449, at *6 (S.D.N.Y. Aug. 27, 1996) (dismissing hostile work environment claim based entirely "on offensive comments, uttered within moments of each other, during one isolated incident"). Plaintiff makes no other allegations-such as other specific instances in which he was harassed on account of his sexual orientation or that Vito made physical threats or contact with him-that demonstrate a hostile work environment. Cf. Richardson, 180 F.3d at 437 (observing that a single sexual assault may be sufficient to alter the terms and conditions of the victim's employment). The Court therefore dismisses ...


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