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Dillon v. NED Management, Inc.

United States District Court, E.D. New York

February 2, 2015

MICHAL DILLON, Plaintiff,
v.
NED MANAGEMENT, INC., YACOV FRIDMAN, ERIC VAINER, POLINA VAINER, JOE MILLIGIAN, Defendants

Decided: January 30, 2015.

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For Michal Dillon, Plaintiff: Marjorie Mesidor, Nicole Ann Welch, Phillips PLLC, New York, NY.

For Ned Management, Inc., Yacov Fridman, Eric Vainer, Polina Vainer, Joe Milligan, Defendants: John J.P. Howley, Law Offices of John Howley, New York, NY.

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MEMORANDUM & ORDER

Jack B. Weinstein, Senior United States District Judge.

Table of Contents

I. Introduction

II. Facts

A. Dillon's Employer

B. Dillon's First Six Months on the Job

C. Fridman's Unwanted Sexual Advances

D. Dillon Lodges Informal Complaint with Milligan and Mr. Vainer against

Fridman

E. Inadequate " Investigation" by Fridman's Stepson Follows Dillon's

Complaint

F. At the Direction of Mrs. Vainer, Dillon Is Not Paid for Working on the

Day Fridman

Allegedly Touched Her Buttock

G. Dillon Is Fired

III. Summary Judgment Standard

IV. Law

A. Applicable Statutes and Rules of Construction

1. Title VII

2. NYCHRL

B. Hostile Work Environment

1. Title VII

a. Severity or Pervasiveness of Harassment

b. Imputing Conduct That Created Hostile Work Environment to Employer

c. Affirmative Defense

2. NYCHRL

a. Direct Liability of Employer

b. Direct Liability of Individual Employees

c. Aider and Abettor Liability

C. Retaliation

1. Title VII

a. Plaintiff's Burden: Prima Facie Case

i. Engagement in Protected Activity

ii. Employer's Awareness of Protected Activity

iii. Adverse Employment Action

iv. Causal Connection Between Adverse Action and Protected Activity

b. Employer's Burden: Non-Retaliatory Reason for Employment Action

c. Plaintiff's Renewed Burden: Assessing Whether Employer's Stated Reason

is Pretextual

2. NYCHRL

a. Direct Liability of Employer

b. Direct Liability of Individual Employees

c. Aider and Abettor Liability

V. Application of Law to Facts

A. Hostile Work Environment

1. Title VII Claim against Defendant Ned Management

2. NYCHRL Claims against Defendant Ned Management and Individual

Defendants 32

a. Direct Liability against Defendant Ned Management

b. Direct Liability against Individual Defendants

c. Aider and Abettor Liability against Individual Defendants

B. Retaliation

1. Title VII Claim against Defendant Ned Management

2. NYCHRL Claims against Defendant Ned Management and Individual

Defendants 35

a. Direct Liability against Defendant Ned Management

b. Direct Liability against Individual Defendants

c. Aider and Abettor Liability against Individual Defendants

VI. Conclusion

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I. Introduction

Plaintiff contends that the docking of her pay and her termination occurred because she accused one of her bosses, defendant Yacov Fridman, of making unwanted sexual advances toward her. She was employed as a secretary, front-desk attendant, and nerve conduction technician at defendant Ned Management, Inc. (" Ned Management" or " the company" ), a family-run management services organization for doctors, which operates out of various locations in New York City.

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Defendant Joe Milligan, Dillon's immediate supervisor, and defendant Eric Vainer (" Mr. Vainer" ), the owner of the company, she charges, largely ignored her when she complained about Fridman's behavior. Mr. Vainer, considering the accusations about his stepfather to be false, told Dillon to " get an attorney." Defendant Polina Vainer (" Mrs. Vainer" ), the bookkeeper of the company and mother of Mr. Vainer, it is alleged, docked Dillon's pay in retaliation for lodging an informal complaint against Fridman--referred to by the parties as Mrs. Vainer's common-law husband.

Advancing theories of hostile work environment, retaliation, and aiding and abetting the creation of a hostile work environment and retaliation, Dillon sues Ned Management, Milligan, the Vainers, and Fridman under a combination of federal and city laws. See Title VII of the Civil Rights Act of 1964 (" Title VII" ), 42 U.S.C.A. § 2000e-2(a), 3(a) (West 2012); New York City Human Rights Law, N.Y.C. Admin. Code (" NYCHRL" ), § 8-107(1), (6), (7) (West 2012). Fridman, uniquely, is sued for sexual assault and battery.

Defendants insist that Dillon's incessant lateness--and nothing more--resulted in her firing.

Defendants' motion for summary judgment is denied. Plaintiff's hostile work environment and retaliation claims against Ned Management will proceed to trial under Title VII and NYCHRL. Hostile work environment and retaliation claims, including claims for aiding and abetting these civil rights violations, will proceed against the Vainers and Fridman under NYCHRL. A hostile work environment claim and a corollary aiding and abetting claim will proceed against Milligan. A state assault and battery claim against Fridman will be joined.

II. Facts

The evidence favoring plaintiff suggests the following scenario:

A. Dillon's Employer

Dillon was employed by Ned Management, a small, family-run, billing, bookkeeping, and credentialing management services organization for doctors, from February 10, 2012 until October 10, 2012. (E. Vainer Dep. Tr. 19:23-20:3, 55:20-56:4, 66:15-67:17, 187:24-25, ECF No. 57-3; P. Vainer Dep. Tr. 26:20-27:23, ECF No. 57-4.) Mr. Vainer hired Dillon to perform the duties of a secretary, front desk attendant, and nerve conduction technician. ( Id. at 59:15; Milligan Dep. Tr. 35:17-18, ECF No. 57-5.) Her job responsibilities included managing patient information and scheduling patient appointments with various doctors. (Milligan Dep. Tr. 35:21-22.) For the first ninety days of her employment, Dillon was paid $15.00 per hour. (Dillon Decl. ¶ 5, ECF No. 56). After this probationary period, she was paid $17.50 per hour. ( Id.; E. Vainer Dep. Tr. 123:22-23.) As a full-time employee, she was hired to work approximately thirty hours per week. (Dillon Decl. ¶ 18; Gueten Aff. ¶ 7, ECF No. 51-9.)

B. Dillon's First Six Months on the Job

Her first six months of employment were without incident or complaint; no problems arose with respect to her working environment or her colleagues. (Dillon Dep. Tr. 63:9-16, ECF No. 57-1.) Often arriving to work around 9:00 a.m., she prioritized responding to the immediate needs of clients before formally clocking-in. (Dillon Decl. ¶ 19.) She " rarely punched in immediately after [she] got to the office because [she] needed to boot up [her] computer and log in to the punch-in system." ( Id.) " On some days, the computer

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system wasn't working properly so [she] couldn't clock in right when [she] arrived." ( Id.) During these months, she never received any warnings from her supervisors that she needed to clock-in immediately upon entering the building. (E. Vainer Dep. Tr. 188: 2-9; Dillon Decl. ¶ 51.)

Her encounters with defendant Fridman, who was tasked with transporting documents between Ned Management facilities, were few; the two rarely exchanged more than formal pleasantries. (Dillon Dep. Tr. 70:23-71:5; Fridman Dep. Tr. 54:20-24, ECF No. 57-2.)

Cognizant of Fridman's familial ties to her bosses, Dillon considered Fridman to be her " superior." (Dillon Dep. Tr. 63:19-20 (" He was or is the boss's husband. . . . I thought of him as my superior." ).) Publicly referring to Mrs. Vainer as his wife and functioning as Mr. Vainer's stepfather, Fridman had been a part of the Vainers' lives for twenty-five years. (P. Vainer Dep. Tr. 8:9-11; E. Vainer Dep. Tr. 170:14-171:8 (Counsel: " Do you love Mr. Fridman?" E. Vainer: " Yes." ).) At Ned Management, Fridman delivered essential documents to Dillon, including her weekly paycheck, and required her to transport documents to his car when he called and requested assistance. (Dillon Decl. ¶ ¶ 25-27; Dillon Dep. Tr. 64:17-23; Milligan Dep. Tr. 139:4-14; Fridman Dep. Tr. 42:15-20.) Fridman testified: " I don't have to ask [for the assistance of Ned Management employees]. They know they gotta help me." (Fridman Dep. Tr. 66:3-4.)

C. Fridman's Unwanted Sexual Advances

Fridman's behavior toward Dillon abruptly changed in August 2012. (Dillon Dep. Tr. 63:12-73:22.) On August 17, while delivering paperwork to Fridman on the street outside of the building where she worked, Fridman told Dillon, " [Y]ou have nice titties," and then--offering her cash--asked if he could " see them." ( Id. at 65:2-4; Dillon Decl. ¶ ¶ 24, 27.) Shocked, she responded, " Have a good day," abruptly leaving. (Dillon Dep. Tr. 65:4-5.)

Uncomfortable, dejected, and unsure about what to do next, she discussed the incident with Carmen Gueten, a non-Ned Management front desk attendant with whom Dillon shared responsibilities. (Dillon Decl. ¶ 28; Gueten Aff. ¶ ¶ 3-4, 10-11.) Later that evening, Dillon spoke with her friend Iasia Wright, another non-employee of Ned Management. (Dillon Dep. Tr. 65:23-66:1.) Wright told Dillon to " brush off [Fridman's lewd comment] and not think about it too much." ( Id. at 66:2-67:2.)

Five days later, on August 22, Fridman approached Dillon again. ( Id. at 69:12-70:6.) This time, he told her to show him her office. ( Id. at 69:19) She complied. ( Id.) Entering the hallway, Fridman waived four $100 bills in her face, saying: " I know you need some extra cash. . . . [T]his could be yours." ( Id. at 68:24-70:6.)

Trying to brush off this second unwelcome sexual advance, plaintiff rushed back to the front desk. ( Id. at 69:23-24.) There, Dillon complained to Ned Management coworker Jennifer Marrero. ( Id. at 71:22-23.) In response, Marrero told Dillon that, in the past, Fridman had made inappropriate sexual remarks to her as well. ( Id. at 71:23-72:7; cf. E. Vainer. Dep. Tr. 85:12-20 (Counsel: " Did you ask [Marrero] any questions about how comfortable she was with Mr. Fridman?" E. Vainer: " No, because they worked in the same room for two years with each other in a room smaller than this . . . So why would I ask her that question?" ).) Marrero never complained because she feared

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being fired would result. (Dillon Decl. ¶ 32; see also Online Chat Exchange between Dillon and Marrero 2-3, ECF No. 57-8.)

In December 2012, almost two full months after Dillon's termination, days after Dillon had filed a formal complaint against Ned Management, at the request of Mr. Vainer, Marrero signed an affidavit stating that Fridman had " always treated [her] in a professional and respectful manner." (Marrero Aff. ¶ 1, ECF No. 51-2; E. Vainer Dep. Tr. 105:21-25.) Similar affidavits were drafted and signed by other Ned Management employees at the request of Mr. Vainer during this period. (E. Vainer Dep. Tr. 106: 10-21.) The validity of Marrero's affidavit is questioned since it was requested by Mr. Vainer under circumstances when Marrero's fear of termination would have been heightened.

For the rest of August and through September, Dillon had no further uncomfortable exchanges with Fridman. (Dillon Dep. Tr. 72:15-18.) Then, on October 1, Fridman requested plaintiff's help loading his car with paperwork to be transported to another Ned Management facility. (Dillon Decl. ¶ 33; Dillon Dep. Tr. 73:6-7; Fridman Dep. Tr. 37:21-38:4, 47:20-48:5.) Dillon nervously complied, understanding that she had no choice. (Dillon Decl. ¶ 33; Fridman Dep. Tr. 66:3-4 (" I don't have to ask [for the assistance of Ned Management employees]. They know they gotta help me." ).) As she was placing paperwork on the floor of the backseat of Fridman's car, he grabbed her buttock. (Dillon Dep. Tr. 73:9-11.) Standing up, plaintiff stared at Fridman. ( Id. at 73:12.) Neither exchanged a word. ( Id. at 73:23-74:1.) On her walk back to the office, she started crying. (Dillon Decl. ¶ 35.) Observing a shaken and visibly upset Dillon, Gueten urged her to complain to Mr. Vainer about the sexual harassment. (Gueten Aff. ¶ ¶ 14-17.)

D. Dillon Lodges Informal Complaint with Milligan and Mr. Vainer against Fridman

That same day, despite her fear that lodging a complaint would put her job in jeopardy, and compromise her ability to support her young son, Dillon informed her immediate supervisor, Milligan, about Fridman's behavior. (Dillon Decl. ¶ ¶ 28, 35, 38; Dillon Dep. Tr. 42:24-43:3, 62:21-23, 76:11-18, 78:23-79:3; Milligan Dep. Tr. 36:25-37:4, 53:7-8, 81:23-25.) Milligan, believing " [t]here was nothing to do" after this conversation, did not press Dillon any further about the situation and did not conduct any formal follow-up investigation. (Milligan Dep. Tr. 49:16-22, 55:15-16.)

The next morning, Dillon called Mr. Vainer to report Fridman's behavior. (Dillon Decl. ¶ ¶ 41-42; Dillon Dep. Tr. 78:10-79:15.) Mr. Vainer brushed her off. (Dillon Decl. ¶ 42.) Lending no credence to the accusations about his stepfather, he informed her that she had " better get an attorney." (E. Vainer Dep. 79:23-24, 171:17-21.)

E. Inadequate " Investigation" by Fridman's Stepson Follows Dillon's Complaint

After speaking to Dillon, Mr. Vainer called Fridman. ( Id. at 80:7-9.) Mr. Vainer described the exchange between the two as follows:

E. Vainer: " I said, 'Dillon just called accusing you of touching her in the wrong place.' And he just said, 'What?' . . ."
Counsel: " What else did he say?"

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E. Vainer: " That's it . . . He said, 'No' . . . I said, 'Okay.'"

( Id. at 81:8-17.)

After this brief conversation, which lasted no more than three minutes, Mr. Vainer went to Dillon's Ned Management location to speak to others. ( Id. at 81:4-82:12, 82:6-12.) During an " investigation" lasting no more than 30 minutes, Mr. Vainer recalled separately pulling eight to ten individuals into a small treatment room and asking each the same singular question: " Did you see Yakov touching Dillon?" ( Id. at 84:19-24, 84:11-14, 87:18-19.) Each answered " no" ; Mr. Vainer pressed no further. ( Id. at 85:12-15, 89:7-9, 93:4-6.) Only Mr. Vainer and the individual being questioned were present during these undocumented " interviews." ( Id. at 92:10-21, 98:5-7.)

Inconsistencies surround defendants' accounts of Dillon's accusation and the " investigation" that followed. Milligan, for example, testified that he was unaware of any investigation. (Milligan Dep. Tr. 36:25-37:3, 114:19-115:9.) Mrs. Vainer too claimed she was oblivious of any investigation. (P. Vainer Dep. Tr. 51:16-25, 67:12-22.) Contradicting her son, she said she was only made aware of Dillon's accusation about Fridman after she received the complaint in the instant case in the mail. ( Compare P. Vainer Dep. Tr. 51:16-25 with E. Vainer Dep. Tr. 99:24-100:11, 138:2-13.)

F. At the Direction of Mrs. Vainer, Dillon Is Not Paid for Working on the Day Fridman Allegedly Touched Her Buttock

On October 3, 2012, payday, Dillon noticed that her pay had been docked by seven hours; she was not paid for working October 1, 2012--the day Fridman had allegedly grabbed her. (Dillon Decl. ¶ ¶ 44-45; P. Vainer Dep. Tr. 39:4-47:9; E. Vainer Dep. Tr. 192:16-197:19.) Payroll informed her that the instruction to dock her pay had come directly from Mrs. Vainer. (P. Vainer Dep. Tr. 14:6-11, 27:11-28:20; Shabat Dep. Tr. 12:12-19, 17:18-18:8, 19:7-13, ECF No. 57-6.) Mrs. Vainer denies the allegation, but presents no alternative reason for the pay cut, which she acknowledges occurred. (P. Vainer Dep. Tr. 51:10-15.)

G. Dillon Is Fired

Seven days after receiving the reduced paycheck, on October 10, 2012, Dillon was fired. (Milligan Dep. Tr. 134:11-20.) On that day, Dillon had called Mr. Vainer to complain about not being paid for October 8, Columbus Day. (Dillon Decl. ¶ 50.) Mr. Vainer maintained in his deposition that this phone call, which he characterized as offensive, along with Dillon's consistent lateness, led to his termination decision. (E. Vainer Dep. Tr. 171:25-172:11, 181:7-25.) Denying the existence of a company " write-up" form for " insubordination" and/or " tardiness," he was unable to recall any specific conversations with Dillon about her lateness. ( Id. at 187:21-25, 181:7-25.) Milligan, however, testified to the existence of a " write-up" form and confirmed that one had never been filled out for Dillon. (Milligan Dep. Tr. 142:10-24, 143:4-7.)

According to Dillon, her firing went unexplained; Mr. Vainer allegedly told her only that she was " too much trouble," never mentioning lateness or work performance issues. (Dillon Decl. ¶ 50.)

The sexual harassment she faced, Dillon claims, led to depression, anxiety, and difficulty sleeping. ( Id. at ¶ 65.) When Dillon was fired, she had " a lot of financial obligations, a child to support and no income to rely [on]." ( Id.) She " could not afford to see any doctors because [she] did not have insurance and . . . had no money

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to pay out of pocket." ( Id.) After intermittent periods of unemployment, in October 2013, Dillon obtained gainful employment at Medical Arts Health and Aesthetics, making $12 per hour--significantly less than the $17.50 per hour she was earning at Ned Management prior to her being sacked. ( Id. at ¶ ¶ 52-64; E. Vainer Dep. Tr. 123:23.)

III. Summary Judgment Standard

Summary judgment will be granted when it is shown that there is " no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). " No genuine issue exists if, on the basis of all the pleadings, affidavits and other papers on file, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, it appears that the evidence supporting the non-movant's case is so scant that a rational jury could not find in its favor." Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996) (reversing grant of summary judgment in gender discrimination case).

Summary judgment is inappropriate when the admissible materials in the record " make it arguable" that the claim has merit. See, e.g., In re Dana Corp., 574 F.3d 129, 151 (2d Cir. 2009) (citations omitted). The Court of Appeals for the Second Circuit has " repeatedly expressed the need for caution [in] granting summary judgment to an employer in a discrimination case where . . . the merits turn on a dispute as to the employer's intent." Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008) (vacating grant of summary judgment in racial discrimination case, explaining that " [w]here an employer has acted with discriminatory intent, direct evidence of that intent will only rarely be available, so that 'affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination'" (citation omitted)). See also, e.g., Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846-47 (2d Cir. 2013) (holding that genuine issue of material fact existed as to whether employer's stated reasons for terminating employee were pretextual, precluding summary judgment of employee's retaliation claims under Title VII and NYCHRL).

It is axiomatic that " [w]here an issue as to a material fact cannot be resolved without observation of the demeanor of [critical] witnesses in order to evaluate their credibility, summary judgment is not appropriate." Redd v. N.Y. Div. of Parole, 678 F.3d 166, 174, 182 (2d Cir. 2012) (quoting Fed.R.Civ.P. 56(e) Advisory Committee Note (1963)) (precluding summary judgment in employee's sexual harassment action against employer because genuine issue of material fact existed as to whether supervisor's touching of employee's breasts was sufficiently severe or pervasive to alter conditions of alleged victim's employment). " Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Id. (quoting Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (internal quotation marks and citation omitted)).

IV. Law

A. Applicable Statutes and Rules of Construction

1. Title VII

Title VII of the Civil Rights Act of 1964 prohibits sexual harassment, rooted in gender discrimination. Karibian v. Columbia Univ., 14 F.3d 773, 777 (2d Cir. 1994) (" [S]exual harassment in the workplace violates 'Title VII's broad rule of ...


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