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DeVito v. Sears, Roebuck & Co.

Supreme Court of New York, New York County

June 28, 2013

Joseph A. DeVITO,
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.


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 that despite making complaints to Hicks, the graffiti remained on the walls for several months until he complained to the State Division of Human Rights.

DeVito alleges that because the anti gay abuse continued unabated, in October 2007, he sent an e-mail to Hicks and Harris, where he expressed frustration that contrary to Hicks' promise, Sears had not updated him on any remedial effort; he stated that the problem was being " swept under the carpet" .

Sears contends that Harris, after speaking with Hicks, commenced an investigation into new concerns raised by DeVito. As part of her investigation, Harris called DeVito the next day and asked him to come to the " full-in" store to discuss his concerns in greater detail. After attempting to coordinate a meeting over several weeks, Harris suggested an off-site venue, and the meeting took place over lunch in December 2007 at Ruby Tuesday's restaurant. At the meeting, DeVito repeated many of the issues that he raised in his e-mail and stated that he was uncomfortable with language being used by other employees in the Auto Center. DeVito asserts that Harris told him that she was meeting with him because she knew nothing about his March and June 2007 written complaints.

Sears alleges that after the meeting, Harris continued her investigation and within a few days interviewed each employee identified by DeVito. She also consulted with Human Resources personnel who staffed the Sears' hotline. Sears asserts that with respect to three employees who had attended the July 2007 training session, Harris gave each a final warning of " possible termination" for further infractions. As to the employees who had not attended the July 2007 training session, Harris provided each with individual training, gave them a verbal warning and asked each to sign a roster that they attended the July 2007 training as evidence that they received the training. According to Sears, after the investigation, Harris " checked with [DeVito] regularly" to ensure that there were no further incidents and that DeVito's co-workers were not using offensive language; she made notes memorializing that DeVito expressed no further concerns about his work environment. She continued to follow up with DeVito and maintained notes of their conversations until April 2008, when, after consulting with Sears' hotline HR staff, she stopped documenting her conversations with him.

On the other hand, DeVito contends that Harris told him about her gay brother never having problems with harassment, and she suggested to him that he was perhaps misinterpreting some of his co-workers behavior. He said, when she followed up, Harris never specifically asked him about anti-gay harassment. According to DeVito, contrary to Sear's policy, she never notified Hicks, his direct supervisor, about her investigation.

According to DeVito's deposition, the harassment would decrease in frequency from time to time but would accelerate as new employees began working at the Auto Center, and making homophobic comments. DeVito contends that Andres Tavares, who replaced Cole as the Auto Center Manager, repeatedly used derogatory anti gay remarks for a full year period. Examples of such homosexual animus alleged by DeVito are: (1) in January 2008, Tavares called Corp a " fairy and faggot" ; (2) one month later, Tavares made reference to " faggot sh*t" ; (3) within a week thereafter, Tavares remarked " how gross going to the gym is because [I] have to see two guys in the locker room together ... [who] are gay" ; (4) Tavares also once referred to DeVito as " Pee Wee Herman", and encouraged other employees to call him that even when DeVito told them to stop.

DeVito affirms that before Sears fired Cole, Sears promised it would promote DeVito to an assistant manager position. Mike Coksa, Sear's Assistant Store Coach, described DeVito as a " good fit" for the position around the time of DeVito's first written complaint in March 2007. According to DeVito, after Cole was terminated in August 2007, Sears did not meet its promise and DeVito was not promoted.

Sears contends that in 2008 or 2009, well after the investigation of DeVito's complaints had concluded, Sears promoted DeVito to Lead Sales Associate. At the time that he commenced this lawsuit, DeVito worked in that position. According to Sears, DeVito remained in that position until approximately April 1, 2009, which was more than two years after his complaints, when he voluntarily resigned after completing his college degree. Sears contends that DeVito expressed his aspiration to pursue a career in art or in running his own business.

Contrarily, DeVito asserts that in January 2008, which was a few months after Cole was terminated, Sears denied him a promotion to the Lead Sales Associate position on the pretext that he was not qualified for the position since he did not have year round availability to work 40 to 50 hours per week, as required for the position. He contends that such was a pretext but that the real reason was his complaints about harassment, citing the fact that a co-worker named Yolanda Vega was only working 30 hours per week when in October 2007 she was offered the position. He cites as evidence the fact that six months later he was promoted to Lead Sales Associate position, when Vega was promoted to Assistant Auto Center Manager.


Summary judgment is inappropriate when the admissible materials in the record " make it arguable" ‘ that the claim has merit. On such a motion, [t]he evidence of the non-movant is to be believed," ; all permissible " inferences are to be drawn in [her] favor," " ...; and the court " must disregard all evidence favorable to the moving party that the jury is not required to believe" . " In sum, summary judgment is proper only when, with all permissible inferences and credibility questions resolved in favor of the party against whom judgment is sought, there can be but one reasonable conclusion as the verdict,’ " " i.e., it is quite clear what the truth is.' " (Citations omitted).
Redd v. New York State Division of Parole, 679 F.3d 166

To establish a case of hostile work environment under the State Human Rights Law, DeVito must demonstrate that he was treated differently because of his sexual orientation and that such disparate treatment was severe and pervasive.

As to the second prong of a hostile environment claim, DeVito must establish that the disparate treatment pervaded the workplace, creating an objectively hostile work environment-one that a reasonable person would find so. See Hernandez v. Kaisman, 103 A.D.3d 106, 112-113, 957 N.Y.S.2d 53 (1st Dept 2012), citing Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 305, 786 N.Y.S.2d 382, 819 N.E.2d 998 n3 [2004]. A claim arises " [w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the condition of the victim's employment and create an abusive working environment' (Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 [1993]" . Hernandez, supra, at 111, 957 N.Y.S.2d 53.

Relying in the opinion of the United States Supreme Court in Harris, Judge Mazarelli wrote for the court in Hernandez, that:

The United States Supreme Court, in cases brought under title VII of the Civil Rights Act of 1964, has held that a hostile work environment exists when
" the conduct [has] both ... altered the conditions of the victim's employment by being subjectively perceived as abusive by the plaintiff, and ... created an objectively hostile or abusive environmentone that a reasonable person would find so; "
" [W]hether an environment is hostile' or abusive' can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. The effect on the psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required.


Under the " severe and pervasive" standard, courts are required to dismiss hostile work environment claims under State Human Rights Laws

where the environment is not objectively hostile because the behavior complained of amounted to no more than " mild" or " isolated" incidents that could not be said to permeate the workplace ( [ Forrest ] id. at 311, 786 N.Y.S.2d 382, 819 N.E.2d 998 [finding that racial epithets did not " pervade" the workplace, having allegedly occurred on three occasions over nine years]; Algno v. Costello, 294 F.3d 365 [2d Cir2002] [reversing verdict in favor of plaintiff based on five incident when she was told she ate carrots and other food " seductively," carrots were placed in her presence arranged to mimic male genitalia, and a vulgar cartoon was left in plaintiff's mailbox]; Brennan v. Metropolitan Opera Assn., Inc., 192 F.3d 310 [2d Cir1999] [one episode of " lewd banter" over the course of three years] ).


On the other hand,

[C]ourts would uphold sexual discrimination claims brought under [State Human Rights Law] statutes where [persons based on their sexual orientation] were subject to ridicule " day after day over the course of several years without supervisory intervention" ( Petrosino, 385 F.3d at 222; see Raniola v. Bratton, 243 F.3d 610, 621 [2d Cir2001] [finding triable issue of fact where plaintiff was allegedly subjected to offensive sex based remarks, workplace sabotage, disproportionately burdensome work assignments, and one serious public threat of physical harm over 30 months.)

Hernandez, at 113, 957 N.Y.S.2d 53

Sears argues that DeVito's claim of hostile work environment fails as a matter of law because he cannot demonstrate that he was treated differently because of his homosexuality since there is no evidence that any of the Sear's employees who are alleged to have made the offending comments or engaged in offensive conduct knew of DeVito's sexual orientation. Sears argues that DeVito admits that none of his co-workers had knowledge of his sexual orientation at the time the comments were made.Sears offers also that even assuming arguendo that all of DeVito's allegations are true, they fall short of raising an issue of fact as to a hostile work environment. For the latter proposition, Sears cites the opinion of the United States Court of Appeals for the Second Circuit in Petrosino v. Bell Atlantic, 385 F.3d 210 (2004), that " simple teasing, offhand comments, or isolated incidents of offensive conduct ... will not support a claim of discriminatory harassment."

This court disagrees with Sears and finds that DeVito has raised an issue of fact objectively that he suffered a work environment hostile to homosexuals, given his contemporaneous complaints from the inception of his employment about a work atmosphere generally hostile to homosexuals as well as about continual and recurring hostility toward homosexuals regularly and specifically directed at him ( Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 102 [2d Cir2010] ). Looking at the totality of the circumstances and giving the non-movant every favorable inference, this court finds that DeVito describes a workplace that was " permeated with discriminatory intimidation, ridicule and insult', causing his employment to be altered for the worse." McGullam v. Cedar Graphics, 609 F.3d 70, 84 (2d Cir.2010).

Moreover, Sears' argument that none of its employees' comments or behavior were directed at DeVito because the employees did not know DeVito was homosexual merely raises an issue with respect to the knowledge and intent of Sears' employees. Both states of mind implicate questions of credibility that must be resolved by the fact finder at trial. Gorzynski, bid.

Sears cites Geraci v. Moody, 82 F.3d 578 (2d Cir1996) to support its position that it is not liable as a matter of law for violating the State Human Rights Law because DeVito has produced no evidence he was treated differently because of his sexual orientation. In Geraci, the Second Circuit affirmed dismissal of plaintiff's employment discrimination complaint because there was no evidence that her former employer had knowledge of the plaintiff's protected status, i.e. that she was pregnant. Since Geraci could not establish her employer's knowledge of her condition, she was unable to establish as a matter of law that he laid her off because of that status. Among the evidence the court cites was that Geraci herself, was unaware of her condition at the time of her employer's adverse action. This court agrees with DeVito that Geraci is inapposite to his hostile work environment claim, though not based on the distinction that DeVito makes that hostile work environment claims are based on objective as opposed to subjective evidence. In the case at bar, just as in Gerac i, subjective evaluations are involved, to wit, whether Sears' employees were hostile to DeVito because of his sexual orientation ( Brennan v. Metropolitan Opera Assn., 284 A.D.2d 66, 78, 729 N.Y.S.2d 77 [1st Dept 2001] ) and whether a reasonable person would perceive the work environment as hostile based on sexual orientation ( Hernandez, supra, 103 A.D.3d at 113, 957 N.Y.S.2d 53). DeVito's action is distinguishable from Geraci as here there is direct evidence that Sears' employees knew that DeVito was homosexual at least to the extent that he claims that such employees explicitly targeted him for anti gay slurs.

In addition, Sears argues that there is no evidence that it acquiesced in, condoned, or approved homophobic behavior on the part of its employees. Sears contends that in fact it immediately responded to DeVito's complaints and intervened in the Auto Center to arrest any offending or inappropriate remarks or conduct by instance counseling and probationary disciplining of offending employees.

This court finds, that, notwithstanding the evidence that Sears took ameliorative steps to arrest the hostile environment, DeVito has nonetheless raised an issue of fact with respect to whether the hostile statements and conduct of his co-workers should be imputed to Sears. First, DeVito alleges that the his harasser during 2008 was Tavares, his direct supervisor. Should objectionable conduct on Tavares' part be proved, such conduct would be imputed automatically to Sears. Gorznynski at 103.

In addition, this court disagrees with Sears that because it has an anti harassment policy in place and responded promptly when DeVito made his formal complaints about the alleged harassment, there is no evidence as a matter of law that it acquiesced in or condoned a work environment hostile to DeVito as a homosexual. Likewise DeVito's specific account of persistent and severe words and actions on the part of his co-workers raises an issue of fact as to whether Sears in fact did so. On the same basis, DeVito has raised an issue of fact whether Sears' corrective actions were reasonable as a matter of law, which must be adjudicated by a fact finder at trial. Polidori v. Societe Generale Groupe, 39 A.D.3d 404, 405, 835 N.Y.S.2d 80 (1st Dept 2007).

Under the State HRL, it is unlawful to retaliate against an employee opposing discriminatory practices ... To prove unlawful retaliation, a plaintiff must show that (1)[ ]he was engaged in protected activity; (2)[his] employer was aware that [ ]he participated in such activity, ( [ ]he suffered an adverse employment action, and (4) there is a causal connection between the protected activity and the adverse action (citation omitted). Asabor v. Archdiocese of NY, 102 A.D.3d 524, 528, 961 N.Y.S.2d 17 (1st Dept 2013).

As for DeVito's unlawful retaliation claim, Sears argues that it has shown that DeVito suffered no adverse employment action, as a matter of law. Sears points out DeVito's deposition testimony that he never applied for the promotion at the time in question and declined to pursue the promotion because he was " annoyed" at Sears when it terminated Cole. Nor is there any evidence that Sears ever denied him the promotion, and DeVito admits that when he applied for the promotion, it was granted by Sears.

DeVito has come forward with no evidence that tends to refute Sears' evidence that he suffered no adverse employment action after his complaints to Sears.

Accordingly, it is hereby

ORDERED that the motion for summary judgment dismissing the complaint against defendant is granted as to that portion of the first and second causes of action of the complaint of that alleges violations of New York City Human Rights Law and breach of implied covenant of good faith and fair dealing and that seeks punitive damages, and such portion only is dismissed on consent; and it is further

ORDERED that the motion for summary judgment dismissing the complaint against defendant is granted as to the third cause of action that Sears retaliated against plaintiff in violation of Executive Law § 296 and the third cause of action is dismissed; and it is further

ORDERED that the motion for summary judgment dismissing the complaint against defendant is otherwise denied; and it is further

ORDERED that the parties are directed to appear in Mediation I and should the matter not settle thereat, parties shall appear for a pre-trial conference before this court on August 27, 2013 at 2:30 P.M. in Part 59, Room 103, 71 Thomas Street, New York, New York 10013 to set a trial date.

This is the decision and order of the court.

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