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Galanis v. Harmonie Club of City of New York

United States District Court, Second Circuit

January 10, 2014




Plaintiff Denis Galanis ("Plaintiff"), brings this action against his employer, the Harmonie Club of the City of New York (the "Club") and the Club's General Manager Christopher Carey ("Carey, " collectively, "Defendants"). Construing Plaintiff's Complaint in the light most favorable to him, Plaintiff asserts claims for age discrimination and retaliation in violation of the Age Discrimination in Employment Act of 1967 (the "ADEA"), 29 U.S.C. §§ 621 et seq., the New York State Human Rights Law (the "NYSHRL"), N.Y. Exec. Law §§ 290 et seq., and the New York City Human Rights Law (the "NYCHRL"), N.Y.C. Admin. Code. §§ 8-101 et seq.; claims for hostile work environment and retaliation on the basis of his age and national origin in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq.; and claims for discrimination and retaliation on the basis of his national origin in violation of the NYCHRL; as well as common law claims for intentional infliction of emotional distress; breach of implied contract of employment;[1] breach of contract; and a claim for injuries and damages. Plaintiff also asserts a claim against Carey for aider and abettor liability under the NYSHRL.[2] The Court has jurisdiction of the action pursuant to 28 U.S.C. §§ 1331 and 1367. Defendants move to dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The Court has reviewed thoroughly all of the parties' submissions and arguments. For the following reasons, Defendants' motion is granted in part and denied in part.


Plaintiff is a seventy-three year old man of Hellenic national origin. (Compl. ¶¶ 19, 23.) The Club is a private social club that employs approximately 100 employees to run its two restaurants, banquet hall and fitness center. ( Id. ¶ 29.) Plaintiff has worked as a waiter for the Club since 1988. ( Id. ¶ 22.) According to Plaintiff, in recent years, the Club's employees, including Carey, have "engaged in a concerted effort to force him to retire." ( Id. ¶ 24.) Plaintiff alleges that, over the past several years, the Club's supervisors and managers have routinely teased Plaintiff about his age, including calling Plaintiff "an old man, " and persistently questioning him about his retirement plans. ( Id. ¶ 25.) Plaintiff further contends that one of his supervisors told him that he should retire because the "Harmonie Club is well positioned to replace him with a thousand young people willing to do the job.'" ( Id. ¶ 26.) According to Plaintiff, his managers and supervisors ignored the discriminatory comments that were made to Plaintiff and, instead of reprimanding the relevant parties, encouraged them. (Compl. ¶ 27.) In his EEOC Charge, Plaintiff contends that the Club created an environment "that promotes age based harassment" and that Carey and other supervisory and non-supervisory employees "repeatedly asked [him] to retire." (Pl. Mem. of Law in Opp. to Defs' Motion to Dismiss Ex. A, EEOC Charge, at 3.)

Plaintiff claims that he objected to his managers' age-based comments and complained to the Club in writing, in accordance with the Club's policies, before filing his EEOC charge in August 2010. (Compl. ¶ ¶ 11, 12, 13, 33, 34; Pl. Mem. of Law in Opp. to Defs' Motion to Dismiss, Ex. A, EEOC Charge.) In retaliation for these complaints and in order to force him to retire, Plaintiff alleges, the Club issued warnings to Plaintiff; scrutinized his work performance; increased his workload; denied him compensation opportunities; demoted him without cause; and withheld his pay. (Compl. ¶¶ 28, 35, 58.) Plaintiff contends that the Club began issuing warnings to him in October 2004, shortly after the arrival of a new General Manager, and continued to issue warnings through January 29, 2010. ( Id. ¶ 35.)

Plaintiff filed a written Charge of Discrimination and Retaliation with the EEOC on August 23, 2010. ( Id. ¶¶ 11, 12, 13; Pl. Mem. of Law in Opp. to Defs' Motion to Dismiss, Ex. A, EEOC Charge.) The EEOC issued its determination on June 29, 2012, and stated that there was reason to believe that the Club had discriminated and retaliated against Plaintiff in violation of the ADEA. (Compl. ¶ 31, Pl. Mem. of Law in Opp. to Defs' Motion to Dismiss, Ex. B.) The EEOC issued Plaintiff's "Notice of Right to Sue" on March 28, 2013.[4] (Compl. ¶ 13, Ex. A.) Plaintiff timely filed the instant action. ( Id. ¶ 13.)


When deciding a motion to dismiss a complaint for failure to state a claim under Rule 12(b)(6), the Court "accept[s] as true all factual statements alleged in the complaint and draw[s] reasonable inferences in favor of the non-moving party." McCarthy v. Dun & Bradstreet Corp. , 482 F.3d 184, 191 (2d Cir. 2007). While detailed factual allegations are not required, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007)). Pleadings consisting only of "labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do.'" Id . (quoting Twombly , 550 U.S. at 555). However, "the question on a Rule 12(b)(6) motion is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'" Sikhs for Justice v. Nath , 893 F.Supp.2d 598, 615 (S.D.N.Y. 2012) (quoting Villager Pond, Inc. v. Town of Darien , 56 F.3d 375, 378 (2d Cir. 1995)). In determining a Rule 12(b)(6) motion to dismiss, the Court may consider the complaint, any exhibits attached to the complaint, materials incorporated in the complaint by reference, and documents that, "although not incorporated by reference, are integral' to the complaint." Schwartzbaum v. Emigrant Mortgage Co., No. 09 Civ. 3848 , 2010 WL 2484116, at *3 (S.D.N.Y. June 16, 2010) (citations omitted).

In the employment discrimination context, "a complaint need not establish a prima facie case of employment discrimination to survive a motion to dismiss; however, the claim must be facially plausible and must give fair notice to the defendants of the basis for the claim." Wolf v. Time Warner, Inc., 09 Civ 6549, 2011 WL 856264, at *4 (S.D.N.Y. Mar. 3, 2011) (internal quotation marks and citations omitted). "Although a plaintiff need not plead facts to establish a prima facie case of employment discrimination in order to survive a motion to dismiss, the court [nonetheless] considers the elements of a prima facie case in determining whether there is sufficient factual matter in the Complaint which, if true, give the Defendant[s] fair notice of Plaintiff['s] employment discrimination claims and the grounds on which such claims rest." Id . (internal quotation marks and citations omitted).

Age-Based Discrimination in Violation of the ADEA and the NYSHRL

The ADEA and the NYSHRL make it unlawful for an employer to discharge or otherwise discriminate against any individual with respect to "compensation, " "terms, conditions, or privileges of employment, " due to that individual's age. 29 U.S.C. § 623(a)(1); N.Y. Exec. Law § 296. Because "[d]iscrimination claims brought under the NYSHRL are analyzed under the same standard as those brought under [the] ADEA, " the Court considers Plaintiff's ADEA and NYSHRL age-based discrimination claims together. See Clarke v. InterContinental Hotels Group, PLC, No. 12 Civ. 2671(JPO), 2013 WL 2358596, at *11 (S.D.N.Y. May 30, 2013). To state a discrimination claim under the ADEA and the NYSHRL, so as to survive a motion to dismiss, a plaintiff must allege that "he was a member of a protected class, his employer took an adverse employment action against him, and this action occurred under circumstances from which a discriminatory motivation can be inferred." Chang v. City of New York Dep't for the Aging, No. 11 Civ. 7062(PAC)(JLC), 2012 WL 2156800, at *3 (S.D.N.Y. June 14, 2012) (internal quotation marks and citation omitted).

Here, the Plaintiff, who is seventy-three years old, was within the protected age group. The ADEA protects people over the age of forty and the NYSHRL protects people over the age of eighteen. See 29 U.S.C. § 631(a); N.Y. Exec. Law § 296. Plaintiff has also sufficiently alleged that he "possesses the basic skills necessary for performance of [the] job." Slattery v. Swiss Reinsurance Am. Corp. , 248 F.3d 87, 92 (2d Cir. 2001) (quoting Owens v. New York City Hous. Auth. , 934 F.2d 405, 409 (2d Cir. 1991)). Plaintiff was employed as a waiter at the Club for over twenty-five years before the events in question. See, e.g., Hird-Moorhouse v. Belgian Mission to United Nations, No. 03 Civ. 9688, 2010 WL 3910742, at *4 (S.D.N.Y. Oct. 5, 2010) ("Plaintiff's nineteen years at the Mission demonstrate that she had the basic skills necessary for a secretary-receptionist and was qualified for the position").

Plaintiff also sufficiently alleges that the Club took an adverse employment action against him. An adverse employment action is a "materially adverse change in the terms and conditions of employment." Noon v. Int'l Business Machines, No. 12 Civ. 4544(CM)(FM), 2013 WL 6504410, at *1 (S.D.N.Y. Dec. 11, 2013) (internal quotation marks and citations omitted). "Classic examples of adverse employment actions include termination of employment or demotion indicated by diminution in wage, less distinguished title, material loss of benefits [or] significantly diminished material responsibilities." Id . (internal quotation marks and citations omitted). Here, while verbal abuse and the assignment of a heavier workload alone cannot generally qualify as an adverse employment action, see, e.g., Novak v. Waterfront Comm'n of New York Harbor, 928 F.Supp.2d 723, 732 (S.D.N.Y. 2013) (citing cases), the allegations of withholding Plaintiff's pay, demoting him and denying him compensation opportunities are sufficient to identify adverse employment actions, see, e.g., Gatto v. Jet Blue Airways, No. 09 Civ. 983(LTS)(KNF), 2010 WL 125974, at *2, n.4 (S.D.N.Y. Jan. 14, 2010) ("termination, demotions, salary reductions and other materially adverse changes in the terms and conditions of employment will constitute adverse employment actions").

As for the third element - namely, that the adverse action occurred under circumstances from which discriminatory motivation can be inferred, Plaintiff alleges that managers and supervisors would deliberately, in front of him and other similarly-aged employees, refer to younger employees as "the star team" and "cream of the cream." (Compl. ¶ 32.) Plaintiff also stated in his EEOC Charge that he was "warned in written [sic] for entering the kitchen area but members of management and similarly situated younger employees have... entered the kitchen, prepared food and have not been disciplined." (Pl. Mem. of Law in Opp. to Defs' Motion to Dismiss, Ex. A at 3.) See Mandell v. Cnty. of Suffolk , 316 F.3d 368, 379 (2d Cir. 2003) ("[a] showing of disparate treatment... is a recognized method of raising an inference of discrimination for purposes of making out a prima facie case"); see also Gundlach v. Int'l Bus. Machs. Corp., No. 11 Civ. 846, 2012 WL 1520919, at *5 (S.D.N.Y. May 5, 2012) (although a "plaintiff must ultimately specifically show himself to be similarly situated in all material respects to the individuals with whom he compares h[im]self, " discriminatory motive can be inferred if an employer treats similarly situated employees outside a plaintiff's protected group more favorably). ...

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