The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
On September 10, 2009, Plaintiffs Arturo Caravantes ("Caravantes") and Francisco Sotarriba ("Sotarriba") (collectively, "Plaintiffs") filed a Complaint ("Complaint") against Defendants 53rd Street Partners, LLC d/b/a Remi Restaurant ("Remi"), and Oscar Velandia ("Velandia") (collectively, "Defendants").*fn1 Therein, Plaintiffs allege that Defendants discriminated against them in the terms and conditions of their employment on the basis of their sex, subjected them to a severe and pervasive hostile work environment, and failed to provide a reasonable mechanism for Plaintiffs to complain of the sexual harassment, thereby violating Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"), New York Human Rights Law, N.Y. Executive Law § 290, et seq. ("NYHRL") and New York City Human Rights Law, Administrative Code of the City of New York § 8-101, et seq. ("NYCHRL"). (Compl. dated October 9, 2009 ("Fed. Compl.") ¶¶ 74-91.) In addition, the Complaint alleges a common law claim for intentional infliction of emotional distress. (Id. ¶¶ 92-96.)
On May 26, 2011, Defendants filed a motion for summary judgment. On June 17, 2011, Plaintiffs submitted a memorandum in opposition to Defendants' motion, and on June 30, 2011, Defendants submitted a reply memorandum. Oral argument was held on July 1, 2011. For the following reasons, Defendants' motion for summary judgment is granted with respect to Plaintiffs' claim for intentional infliction of emotional distress, and denied in all other respects.
Remi Restaurant is an Italian restaurant located at 145 West 53rd Street in New York City. Defendant 53rd Street Partners purchased Remi, and began operating the restaurant on April 11, 2005. (Pls.' Resp. to Defs.' Local Rule 56.1 Statement ("Pls.' 56.1 Resp.") ¶¶ 1-2.)
Defendant Oscar Velandia is an employee at Remi who has been employed
from 1997 through the present. (Id. ¶ 6.) Velandia started as a
busboy, was promoted to waiter in 1997, and became head waiter at Remi
in 2005. (Id.) Plaintiffs allege, though Defendants do not concede,
that when Velandia became a head waiter in 2005, he was also given
responsibilities reflecting those of an assistant manager.*fn2
Plaintiff Caravantes is a male who was employed at Remi as a coffee station operator from approximately July 1991 until August 11, 2008. *fn3 (Id. ¶ 3.) Plaintiff Sotarriba is a male who was employed at Remi from approximately 1999 to May 31, 2008, first as a busboy, and then as a food runner. *fn4 (Id. ¶ 4.)
1. Caravantes's NYSDHR Complaints
On March 10, 2008 Caravantes filed a verified complaint pro se with the New York State Division of Human Rights ("NYSDHR") ("Initial NYSDHR Complaint"), charging 53rd Street Partners and Ben Ranieri ("Ranieri") with "an unlawful discriminatory practice relating to employment because of age, opposed discrimination/retaliation, [and] sex." *fn5 (Decl. of Aaron S. Delaney dated June 17, 2011 ("Delaney Decl. 6/17/11") Ex. 12.) In the Initial NYSDHR Complaint, Caravantes alleged that, on or about October 11, 2007, Ranieri,*fn6 who was employed by Remi as a waiter, inappropriately touched his penis. (Delaney Decl. 6/17/11 Ex. 12 ¶ 5.) Caravantes alleged that the Defendants took no action in response to this incident, despite the fact that he complained to Remi's general manager Francisco Pistorio ("Pistorio") about the incident, and told Pistorio that Ranieri had sexually harassed other employees in the past. (Id.) Caravantes also alleged generalized discrimination against him in retaliation for opposing discriminatory practices. (Id. ¶¶ 2-8.) Though Velandia is mentioned in the Initial NYSDHR Complaint, (id. ¶ 3), Caravantes levied no allegation of sexual harassment against him because Caravates "was afraid that if I complained about his harassment, Velandia would have me fired or have my shifts or work hours decreased." (Aff. of Arturo Caravantes in Supp. of Pls.' Mem. in Opp'n to Defs.' Mot. for Summ. J. ("Caravantes Aff.") ¶ 13.)
Plaintiffs contend that, in an August 7, 2008 interview with NYSDHR social worker Maria Torres, Caravantes revealed that Velandia had been sexually harassing him and had coerced Caravantes to have oral sex and sex with him. (Caravantes Aff. ¶ 20; see Delaney Decl. 6/17/11 Ex. 13.)
On August 11, 2008, after working at Remi for seventeen years, Caravantes's employment ended. (Pls.' 56.1 Resp. ¶ 9.) Plaintiffs contend that Caravantes was fired because Velandia made disparaging comments about him after he resisted Velandia's sexual harassment. (Id.; Caravantes Aff. ¶ 22.) Defendants maintain that Caravantes's position as a coffee station operator was eliminated, and that he declined offers to work either as a food runner or a restaurant cleaner. (Defs.' Local Rule 56.1 Statement ("Defs.' 56.1") ¶ 9.)
In or around December 2008, Caravantes retained counsel. (Caravantes Aff. ¶ 23.) Plaintiffs assert that in January 2009, the NYSDHR contacted Caravantes's counsel requesting that Caravantes amend the Initial NYSDHR Complaint to add allegations concerning Velandia's conduct. (Pls.' 56.1 Resp. ¶ 11.) On January 15, 2009, Caravantes filed an amended charge with the EEOC alleging discrimination on the basis of sex by Velandia. (Delaney Decl. 6/17/11 Ex. 14.) The charge, which is dated January 15, 2009 and notarized, states the following: Beginning in 2006, Oscar Velandia, a senior manager at Remi Restaurant, sexually harassed me by making gross sexual comments, inappropriately touching my genitals, and making me perform sexual acts on at least a once weekly basis. The last time Velandia propositioned and/or touched me was in June or July 2008. In March 2008, I told Oscar that I did not want him to ever touch me again. From then on, Velandia began to retaliate against me. Eventually, on August 11, 2008, Oscar caused me to be fired by the restaurant in retaliation for my refusal to engage in sex acts with him.
On June 2, 2009, Caravantes's attorneys submitted an amended verified complaint ("Amended NYSDHR Complaint") to the NYSDHR which was filed with the NYSDHR on June 4, 2009.*fn8 (Pls.' 56.1 Resp. ¶ 10.) The Amended NYSDHR Complaint charges 53rd Street Partners, Ranieri, and Velandia with unlawful discriminatory practices relating to employment on the basis of sex and unlawful retaliation. (Delaney Decl. 6/17/11 Ex. 16.) Specifically, it alleges that Velandia "commenced a campaign of sexual harassment" against Caravantes beginning in late 2005, (id. ¶ 4), and running up until approximately July 2008 (id. ¶ 11). Velandia's harassment began with "sexual touching," and escalated to "grabbing Mr. Caravantes's genitals on an almost daily basis and eventually forcing Mr. Caravantes into oral intercourse." (Id. ¶¶ 4-5.) It concludes: "On August 11, 2008, Mr. Caravantes was fired from Remi because of his complaint to NYSDHR and because he opposed Mr. Velandia's continuing sexual harassment." (Id. ¶ 12.) In addition to the foregoing, the Amended NYSDHR Complaint alleges that "the date the most recent or continuing discrimination took place is August 11, 2008." (Id.) On June 12, 2009, the EEOC issued Caravantes a Notice of Right to Sue on the charges in the Amended NYSDHR Complaint. (Delaney Decl. 6/17/11 Ex. 17.)
2. Sotarriba's EEOC Charge
At the end of May 2008, Sotarriba asked Pistorio if he could take two or more months of vacation to visit his family in Mexico. (Pls.' 56.1 Resp. ¶ 16.) Pistorio told him that he could only allow him a month of vacation. (Id.) Sotarriba continued to work at Remi until May 31, 2008. (Id. ¶ 16.) Thereafter, he went to Mexico and did not return to Remi until September 2008. (Id. ¶ 17.) Following his return, Sotarriba spoke with general manager Carlos Maggi, who informed him that his services were not needed at that time. (Id.) Sotarriba has not returned to work at Remi since. (See id. ¶ 4.)
On January 20, 2009,*fn9 Sotarriba filed a charge of employment discrimination with the EEOC alleging that Defendant 53rd Street Partners discriminated against him on the basis of sex. (Delaney Decl. 6/17/11 Ex. 15.) Therein, Sotarriba alleges that, "[b]eginning in 2001, Oscar Velandia . . . sexually harassed me by making gross sexual comments, inappropriately touching my genitals, and asking me to engage in sexual acts with him." (Id.) For example, "[a]t least 10-20 times per day, Velandia would say to me, 'Let me suck you.'" (Id.) Further, Sotarriba alleges that because he would not engage in sexual acts with Velandia, Velandia threatened to "make [his] life impossible," and looked for an excuse to fire him. (Id.) According to the charge, the last time Velandia touched or propositioned Sotarriba was in June 2008.*fn10 (Id.)
Defendants were not served with Sotarriba's EEOC charge until July 30, 2009, when they received a letter from John B. Douglass, Supervisor of the EEOC Charge Receipt/Technical Information Unit. (Id.) The letter stated that Sotarriba's charge was received by the EEOC in January 2009 and was considered timely, "but due to an error on [the EEOC's part], was not processed and served according to [their] usual procedures." (Id.) On August 7, 2009, ...