United States District Court, N.D. New York
YVONNE W. ALEX, Plaintiff,
GENERAL ELECTRIC CO., et al., Defendants.
ERIC SANDERS, ESQ., THE SANDERS FIRM, PC, Counsel for Plaintiff, New York, NY.
JOHN E. HIGGINS, ESQ., NIXON PEABODY LLP, Counsel for Management Defendants, Albany, NY.
GLEN P. DOHERTY, ESQ., McNAMEE, LOCHNER, TITUS & WILLIAMS, P.C., Counsel for Hourly Defendants, Albany, NY.
DECISION and ORDER
GLENN T. SUDDABY, District Judge.
Currently before the Court, in this employment discrimination action filed by Yvonne W. Alex ("Plaintiff") against General Electric Company and thirteen of its employees, are the following two motions: (1) a motion for reconsideration filed by Defendant Michele Lanoue (Dkt. No. 49); and (2) a motion for reconsideration filed by Plaintiff (Dkt. No. 57). For the reasons set forth below, Defendant Lanoue's motion for reconsideration is granted in part and denied in part; and Plaintiff's motion for reconsideration is denied.
I. DEFENDANT LANOUE'S MOTION FOR RECONSIDERATION
Generally, in support of her motion for reconsideration, Defendant Lanoue asserts the following two arguments: (1) Plaintiff's claims of hostile work environment and sexual harassment against Defendant Lanoue under N.Y. Executive Law § 296 must be dismissed to correct a clear error of law, because (a) there can be no such claims against a non-supervisory co-worker such as Lanoue without a valid primary claim under that statute, and (b) there is no such valid primary claim under that statute; and (2) Plaintiff's claim of hostile work environment against Defendant Lanoue under 42 U.S.C. § 1981 must be dismissed to correct a clear error of law, because (a) the Court has dismissed this claim against all the other Defendants, and (b) if Lanoue's conduct-even when combined with the other Defendants' conduct-was not sufficiently severe or pervasive to alter the conditions of Plaintiff's employment, then her conduct alone could not be so severe or pervasive. (Dkt. No. 49, Attach. 2.)
Generally, in opposition to Defendant Lanoue's motion, Plaintiff requests that the Court deny Defendant Lanoue's motion. (Dkt. No. 57, Attach. 2, at 9-10 [attaching pages "6" and "7" of brief]; Dkt. No. 57, at ¶ 6.)
Generally, in reply to Plaintiff's opposition, Defendant Lanoue argues that, because Plaintiff has failed to specifically respond to her arguments in support of her motion for reconsideration, she has consented to those arguments under Local Rule 7.1(b)(3). (Dkt. No. 60, at 6-8 [attaching pages "3" through "5" of brief].) This argument was also asserted by the remaining Hourly Defendants, as well as by the Management Defendants. ( Id.; Dkt. No. 58, at 6, 11-12 [attaching pages "4, " "9" and "10" of brief].)
After carefully considering the matter, the Court grants in part, and denies in part, Defendant Lanoue's motion.
More specifically, with regard to Plaintiff's hostile-work-environment claim and sexual-harassment claim against Defendant Lanoue under N.Y. Executive Law § 296, the Court agrees that those claims should be dismissed for the reasons offered by Defendants in their memoranda of law. (Dkt. No. 49, Attach. 2; Dkt. No. 60, at 6-8; Dkt. No. 58, at 6, 11-12.) The Court would add only the following analysis.
In this District, when a non-movant fails to oppose a legal argument asserted by a movant in support of a motion, the movant's burden with regard to that argument has been lightened such that, in order to succeed on that argument, the movant need only show that the argument possesses facial merit, which has appropriately been characterized as a "modest" burden. See N.D.N.Y. L.R. 7.1(b) (3) ("Where a properly filed motion is unopposed and the Court determines that the moving party has met its burden to demonstrate entitlement to the relief requested therein...."); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at * 1, n.1 (N.D.N.Y.Oct. 30, 2009) (Suddaby, J.) (collecting cases); Este-Green v. Astrue, 09-CV-0722, 2009 WL 2473509, at *2 & n. 3 (N.D.N.Y. Aug.7, 2009) (Suddaby, J.) (collecting cases). Here, at the very least, Defendant Lanoue has met that modest burden with regard to her first argument.
Although the Second Circuit has not definitively addressed the issue of whether an individual can aid and abet his/her own conduct for purposes of a hostile-work-environment claim under N.Y. Executive Law § 296, it appears that the majority of district court cases to have addressed the issue have answered that question in the negative. See, e.g., Evanoff v. New York State, 12-CV-0726, 2013 WL 6181853, at *6 (W.D.N.Y. Nov. 25, 2013); White v. Pacifica Found., 11-CV-2192, 2013 WL 5288851, at *11 (S.D.N.Y., Sept. 19, 2013); DeJohn v. Wal-Mart Stores East, LP, 09-CV-1315, 2012 WL 3679204, at *16 (N.D.N.Y. Aug. 17, 2012) (McCurn, J.); Reid v. Ingerman Smith LLP, 876 F.Supp.2d 176, 186 (E.D.N.Y. 2012); Ranieri v. McCarey, 712 F.Supp.2d 271, 282 (S.D.N.Y. 2010); JGIII v. Cord, 08-CV-5668, 2009 WL 2986640, at *12, n.5 (S.D.N.Y. Sept. 17, 2009); Virola v. XO Commc'ns, Inc., 05-CV-5056, 2008 WL 1766601, at *20 (E.D.N.Y. Apr. 15, 2008); Jordan v. Cayuga County, 01-CV-1037, 2004 WL 437459, at *4 (N.D.N.Y. Feb. 9, 2004) (Scullin, J.); Chamblee v. Harris & Harris, Inc., 154 F.Supp.2d 670, 677 n.1 (S.D.N.Y. 2001); DeWitt v. Lieberman, 48 F.Supp.2d 280, 294 (E.D.N.Y.1999); Hicks v. IBM, 44 F.Supp.2d 593, 600 (S.D.N.Y. 1999); Rivera v. Prud. Ins. Co. of Am., 95-CV-0829, 1996 WL 637555, at *13 (N.D.N.Y. Oct. 21, 1996) (McAvoy, C.J.); McIlwain v. Korbean Int'l Inv. Corp., 896 F.Supp. 1373, 1383 (S.D.N.Y. 1995); Falbaum v. Pomerantz, 891 F.Supp. 986 (S.D.N.Y.1995); Strauss v. N.Y. State Dep't of Educ., 26 A.D.3d 67, 73 (N.Y.App.Div., 3d Dep't 2005).
However, with regard to Plaintiff's hostile-work-environment claim against Defendant Lanoue under 42 U.S.C. § 1981, the Court reaches a different conclusion. The Court dismissed that claim against the other Defendants in their individual capacities (despite the fact that the Court had permitted that claim to proceed against Defendant Lanoue) essentially for two reasons: (1) based on Plaintiff's factual allegations, the other Hourly Employees neither created a hostile work environment nor directly participated in Lanoue's creation of a hostile work environment; and (2) based on Plaintiff's factual allegations and the admissible record evidence, the Management Employees were not personally involved in the creation of a hostile work environment and there was no specific basis for imputing Lanoue's conduct to them ...