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DeVito v. Sears, Roebuck & Co.

Supreme Court of New York, New York County

June 28, 2013

Joseph A. DeVITO,
v.
SEARS, ROEBUCK & COMPANY, Defendants. No. 102529/10.

Editorial Note:

This decision has been referenced in a table in the New York Supplement.

DuPee & Monroe, PC, Goshen, for Defendant.

Jackson Lewis LLP, White Plains; Bergstein & Ullrich, Chester, for Plaintiff.

DEBRA A. JAMES, J.

Upon the foregoing papers, except for tat portion of the first and second causes of action of the complaint of plaintiff Joseph A. DeVito (DeVito) that alleges violations of New York City Administrative Code § 8-107 and breach of implied covenant of good faith and fair dealing and seeks punitive damages, which shall be dismissed on consent, and the third cause of action that alleges Sears retaliated against plaintiff in violation of New York State Executive Law § 296(1)(a), which shall be dismissed as a matter of law, the court shall deny defendant Sears Roebuck & Co's (sued here as Sears Roebuck & Company) (Sears) motion for summary judgment. Sears seeks summary judgment dismissing the complaint of DeVito that alleges employment discrimination based on sexual orientation under the New York State Executive Law § 291(1) et seq. DeVito opposes the motion.

In May 2009, DeVito filed an action, New York County Supreme Court Index Number 102529/2010, asserting that Sears violated Executive Law (State Human Rights Law) § 296(1)(a) in that Sears unlawfully discriminated against him by allowing a hostile work environment in the form of harassment by his co-workers based on his sexual orientation. DeVito also alleged that Sears violated the State Human Rights Law § 296(1)(a) in failing to promote him in retaliation for his complaints about the abuse. Devito commenced his lawsuit with a co-plaintiff named Robert S. Cole (Cole) who also made claims of violations of the State Human Rights Law based on a homophobic work environment and retaliation. By order dated December 23, 2009, the claims of Cole and DeVito were severed into two lawsuits.[1] However, in the now separate actions, each plaintiff alleges that at certain times and in some instances he observed and was targeted as a homosexual by similar or the same regular episodes of animus as that observed and experienced by the other.

DeVito, who is a gay male, was hired by Sears in October 2006, as a Customer Service Advisor at Sears' Auto Center in Nanuet, New York (the Auto Center), a stand alone building. While employed by Sears, DeVito's direct supervisor was Cole, who was the Assistant Manager of the Auto Center. Jim McGloin was the Operations Manager and John Hicks succeeded Aurea Fernandez, as Auto Center Manager. Jamal Evans was Sears' Loss Prevention Manager. Daniel Corps, an openly homosexual man, was Sears' overall District Manager. Carol Harris was Sears' Human Resources Manager. There is no dispute that DeVito had a good work record and was never given any warning or counseled for poor performance at Sears.

DeVito attests that he was routinely exposed to anti-gay comments and ridicule in the workplace, including but not limited to co-workers regular use of the word " faggot" despite his frequent objections. He asserts that not less than twelve employees made offensive comments about homosexuals or homosexuality in his presence during his work day. Of the twelve employees, ten of his co-workers directed the comments specifically at DeVito. One employee referred to DeVito and Cole as the " Gay Duo" . DeVito asserted that in February/March 2007, approximately four months after began working at Sears, another employee continually spoke in a high pitched and flamboyant voice, mocking him by saying " Hi, my name is Joe", without reprimand.

On March 22, 2007 DeVito complained by e-mail to Cole, which stated in pertinent part:

On numerous occasions I have been the subject of blatant harassment within the walls of Sears. On many occasions talk of my sexuality have come up an I have been called a " Faggot" on numerous occasions. I feel I am unable to do anything about this situation because of the operations manager Jim McGloin has contributed his two cents in this matter by making homophobic statements toward me with my immediate supervisor standing there. I have brought this situation to my Manager Rob Cole's attention in the hopes that the harassment would stop right there and he assured me everything would be taken care of just come to work as usual and the ridicule and the harassment will stop. So I have waited a couple months and still to this day people are making comment towards me and about others who happen to be homosexual ... I like this job and believe I do it well but my ability to do my job is being affected by ignorant people ... I have seen no action and know that others must know about this situation that's going on....I can't continue to keep facing the same people saying the same crap day in and day out....No one should be afraid to go to work because of fear of what will be said about them the next day and especially in a company like Sears this should not be happening. I was assured this situation would be taken care of but still have yet to see any progress in this matter, now I leave it in your hands.

DeVito contends that only a few days after he sent such memo, in his presence McGloin made a crude homophobic comment about " blow jobs" and " hand jobs" and another employee made a vulgar reference to Corp as a homosexual. On another occasion, a co-worker made fun of a customer whose car displayed a rainbow sticker, commenting that he did not " want to touch that faggot's car" .

DeVito alleges that though Cole informed him that he would send DeVito's memo to Evans, DeVito never received any response and saw no evidence of any remedial action. Therefore, on June 25, 2007 he sent by e-mail a written complaint to Corp that described the foregoing incidents and the widespread anti gay harassment taking place at the Auto Center.

Sears contends that Corp responded in less than one half hour to DeVito's June 2007 e-mail and directed Hicks to investigate the matter. DeVito admits that Corp wrote to him that he had " instructed your store manager to speak with you regarding this matter. This type of behavior is not tolerated at any level." DeVito says he spoke to Hicks about DeVito's June 2007 complaint and provided him with notes he made of instances of sexual orientation harassment. Hicks stated that he would start an investigation and keep DeVito apprised of its progress.

Sears contends that Corp also ordered mandatory training on anti discrimination and harassment at the Auto Center. Sears claims that at the training in July 2007 Hicks warned the employees that there would be " serious consequences" if Sears determined that any employee was engaging in the inappropriate conduct alleged by DeVito.

DeVito claims that based upon Hicks' deposition testimony, Hicks never read or saw either his March or June 2007 written complaints in advance of the two training sessions that DeVito alleges took place, and that neither complaints was addressed at either training session. Despite having met with Hicks shortly after his June 2007 complaint, Devito points out that according to Hicks' deposition testimony, the only sexual orientation harassment investigation that took place in 2007 was in response to Cole's complaints. DeVito affirms that many of the employees who committed the harassment did not attend the training session that he attended, where Hicks discussed sexual orientation abuse for only about ten minutes and mainly talked about energy saving initiatives. DeVito asserts that Hicks never mentioned that Auto Center employees were complaining about being targeted for sexual orientation harassment; nor were those in attendance handed copies of Sears' anti-harassment policy. Instead, according to DeVito, Hicks merely read the material in a " monotone, robotic fashion", and then used a racial slur and an offensive ageist joke as examples of prohibited harassment. No one asked questions. Later his co-workers commented that they " didn't understand ... the point of the meeting" and for a week " made fun about how dumb the meeting was" .

DeVito contends that no one at Sears even interviewed McGloin about DeVito's complaints about McGloin's use of anti-gay slurs in DeVito's presence.

DeVito asserts that comments demonstrating anti gay bias continued unabated from July to September 2007. DeVito kept a journal of incidents, which included an instance on August 20, 2007 when two employees " call[ed] each other gay and faggot openly on the sales floor[.] I told them this was inappropriate talk as per Jack's meeting and they just carried on, then making fun of Jack." In August or September 2007, DeVito contends that he saw vulgar graffiti in the employee bathroom, which depicted he and Cole as stick figures performing sex acts, which became more graphic over time. DeVito contends ...


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