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D'Annunzio v. Ayken, Inc.

United States District Court, E.D. New York

June 10, 2014


Page 282

For Lauren D'Annunzio, Ashley D'Annunzio, Gabrielle D'Annunzio, Plaintiffs, Counter Defendants: Robert John Valli, Jr., LEAD ATTORNEY, Sumantra T. Sinha, Valli & Kane, LLP, Garden City, NY.

For Ayken, Inc., doing business as Ayhan's Fish Kebab Restaurant, Ayhan Hassan, Dario Gomez, Defendants: Bruce W. Migatz, Albanese & Albanese LLP, Garden City, NY.

For Ayken, Inc., Ayhan Hassan, Dario Gomez, Counter Claimant: Bruce W. Migatz, Albanese & Albanese LLP, Garden City, NY.

Page 283


HON. WILLIAM F. KUNTZ, II, United States District Judge.

In July 2008, seventeen-year-old Lauren D'Annunzio was violently and sexually assaulted by co-worker Juan Pablo Orellano in the basement of Ayhan's Fish Kebab Restaurant. Orellano was subsequently charged and deported for the assault. Lauren D'Annunzio, along with sisters and co-Plaintiffs Ashley and Gabrielle D'Annunzio, now bring forth overwhelming evidence of further harassment they encountered while working at Ayhan's Fish Kebab Restaurant. The evidence demonstrates that Orellano and other employees made unwanted sexual comments and vulgar sexual motions toward the Plaintiffs; slapped Plaintiffs' buttocks; exposed Plaintiffs' bras; and touched their breasts. While this pervasive abuse was occurring, Ayhan's Fish Kebab Restaurant took no meaningful corrective action.

The question before the Court today is whether Ayhan's Fish Kebab Restaurant (alternately known as " Ayken" ) should be

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held liable for the appalling sexual abuse that Plaintiffs were forced to endure. The Court answers that question with one word: Yes.


I. Defendants' Hiring Practices

Plaintiffs are former employees of Ayhan's Fish Kebab Restaurant in Port Washington, New York. Dkt. 25 (Pls.' 56.1 St.) at ¶ 1.[1] Plaintiffs Gabrielle, Lauren, and Ashley D'Annunzio started working at Ayhan's as hostesses in June 2005, March 2006, and August 2007, respectively. Id. at ¶ ¶ 2-4. Defendant Ayhan Hassan is the President and sole shareholder of Ayken, also known as Ayhan's. Id. at ¶ 6. Defendant Dario Gomez is and has been the General Manager of the restaurant for about ten years and reports directly to Hassan. Id. at ¶ ¶ 7-8.

Gomez's duties include supervising, disciplining, training, hiring, and firing all Restaurant employees, although Gomez lacks the authority to hire chefs or assistant managers. Id. at ¶ ¶ 9-10. The restaurant's staff includes kitchen workers, servers, busboys, and hostesses. Id. at ¶ 24. During the period in question, Ayken did not require Gomez to conduct formal performance reviews of the restaurant's employees. Id. at ¶ 11. As the manager, Gomez was and is responsible for addressing all employee complaints and stopping any inappropriate behavior by employees. Id. at ¶ ¶ 12-13. Gomez was also required to report any inappropriate behavior to Hassan. Id. at ¶ 14.

Ayken utilizes an Employee Handbook, which contains policies on harassment, personal misconduct, and personal relationships. Id. at ¶ 15. Hassan developed the policies set forth in the Employee Handbook and reviews and evaluates them every couple of years. Id. at ¶ 16. Gomez was and is responsible for training all staff on the Employee Handbook's policies. Id. at ¶ 17. Ayken distributed copies of a prior Employee Handbook from 1999 to 2002; though Ayken stopped distributing copies of the 1999 Handbook in 2002, it was still in use after 2002. Id. at ¶ ¶ 18-20. Ayken did not display any posters about sexual harassment policies until after July 2008, when Plaintiffs' employment at the restaurant ceased. Id. at ¶ 23.

Ayken employs approximately twenty employees at the restaurant, with about half being kitchen staff, such as dishwashers, cooks, busboys, and the chef. Id. at ¶ 25. The kitchen staff and busboy positions are primarily held by men, whereas the server and hostess positions are largely held by women. Id. at ¶ 26. The primary language of communication for the kitchen workers is Spanish. Id. at ¶ 27. Gomez speaks fluent Spanish. Id. at ¶ 28. Though Gomez provided newly hired employees with the Employee Handbook, no Spanish translation of the handbook was available. Id. at ¶ ¶ 29-30. During the relevant period, neither Hassan nor Gomez knew whether the employees whose primary language was Spanish understood the contents of the Employee Handbook. Id. at ¶ ¶ 32-33. On those occasions where employees had questions about the Employee Handbook, they usually asked about the company's vacation policy. Id. at ¶ 34. Gomez cannot recall whether he spoke to new hires about the Employee Handbook or the harassment policy during the employees' training period. Id. at ¶ 35.

The Employee Handbook's sections on " Personal Misconduct," " Personal Relationships," and " Harassment" prohibit the following types of behavior: interfering

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with the work performance of another employee; " immoral behavior, gross misconduct, harassment or use of abusive or vulgar language while on company premises or while engaging in company related business" ; derogatory language or slurs; comments about an individual's body; use of sexually degrading words; physical harassment such as touching or assault; and requests for sexual favors or unwanted sexual advances. Id. at ¶ ¶ 36-37. Company policy also required employees to refrain from dating each other. Id. at ¶ 37. Pursuant to the Employee Handbook and corporate policy, Gomez was and is required to report " acts of possible sexual harassment" to Ayken's Human Resource Manager, Jacqueline Mulligan, " before it becomes] severe or pervasive." Id. at ¶ ¶ 39-40. According to the Employee Handbook, management " will immediately investigate the complaint and undertake immediate and appropriate corrective action whenever it determines that harassment has occurred." Id. at ¶ 50. During his tenure as General Manager at the restaurant, Gomez has never reported any instances of possible sexual harassment to either Mulligan or Hassan. Id. at ¶ ¶ 41-42, 46.

Hassan visits the restaurant every day and speaks with Gomez over the phone at least twice a day. Id. at ¶ ¶ 43-44. However, Gomez never saw Hassan speak with any workers about the company's harassment or misconduct policies. Id. at ¶ 45. During the relevant period, Gomez consulted with Hassan only when hiring servers, but in hiring for other positions, Gomez merely notified Hassan. Id. at ¶ 51. While Gomez routinely followed up with references for applicants seeking a position as a server, Gomez only called a potential kitchen staff or busboy's former employers or references on one or two occasions during the past ten years. Id. at ¶ ¶ 52-53. Defendants never conducted background checks, including any examination of past criminal activity, on any newly hired kitchen staff or busboys. Id. at ¶ ¶ 54-55.

Gomez was the General Manager when he interviewed and hired Juan Pablo Orellano (" Orellano" ) as a dishwasher at the restaurant. Id. at ¶ ¶ 56-57. Gomez did not call any of Orellano's former employers or references nor did he conduct a background check prior to hiring Orellano. Id. at ¶ ¶ 60-61. Gomez cannot recall whether he spoke to Orellano regarding Ayken's harassment, misconduct, or personal relationship policies, whether he spoke to Orellano regarding the Employee Handbook, or whether the Employee Handbook was in effect when he hired Orellano. Id. at ¶ ¶ 62-64.

II. Plaintiffs' Allegations of Sexual Harassment

A. Gabrielle D'Annunzio

Plaintiffs allege that Orellano and Gabrielle worked next to each other in the restaurant, working at least two days a week together for three to four hours at a time. Id. at ¶ ¶ 73-74. During Gabrielle's employment at the restaurant from June 2005 to July 2008, Orellano slapped Gabrielle's and co-Plaintiff Lauren's buttocks between five and ten times. Id. at ¶ 70. Orellano told Gabrielle on six or seven occasions that her legs were " big" and " muscular" and that she has a " really big butt and that he likes women like that." Id. at ¶ 71. Orellano offered massages to Gabrielle. Id. at ¶ 72. On other occasions, Orellano worked in tandem with another employee, Carlos Marquina, to make lewd gestures towards Gabrielle. For example, after Orellano tapped Gabrielle's shoulder to get her attention, Marquina made motions of a " hand job" towards Gabrielle. Id. at ¶ 78. During another

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incident, after Orellano tapped Gabrielle's shoulder, Marquina made a " humping" motion and directed other sexual movement toward Gabrielle. Id. at ¶ 79.

Victor Bautista was and is a delivery man for Ayken. Decl. of Victor Bautista at ¶ 1. Bautista would " always ask out [Gabrielle] out on the phone and ask [her] what [she] was doing after [her] shift, which was very uncomfortable [for Gabrielle]." Pls. 56.1 St. at ¶ 81. Plaintiffs further claim that on about four occasions, when Bautista would come to the restaurant to pick up food, he would intentionally touch Gabrielle's hand by putting his hand on top of hers. Id. at ¶ 82.

Jamie Coronel, another employee at the restaurant, allegedly worked with Gabrielle at least two days a week for three to five hours at a time. Id. at ¶ 77. Coronel purportedly told Gabrielle in May or June 2008 that he wanted to " pleasure [her] and he wanted to treat [her] right and that he could please [her] in bed." Pls. 56.1 St. at ¶ 75. Coronel also asked Gabrielle to go out on multiple occasions. Id. at ΒΆ 76. Furthermore, in March 2008, Coronel ...

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