United States District Court, N.D. New York
PHILLIPS & ASSOCIATES, ATTORNEYS AT LAW, PLLC, JESSE C. ROSE, ESQ., New York, New York, Attorneys for Plaintiff.
PERTZ & PERTZ, PLLC, RICHARD PERTZ, ESQ., Remsen, New York, Attorneys for Defendant, Mansur Rafizadeh.
MEMORANDUM-DECISION AND ORDER
MAE A. D'AGOSTINO, District Judge.
Plaintiff commenced this action pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII") and the New York State Human Rights Law ("NYSHRL"). See Dkt. No. 1. On February 15, 2014, Defendants filed motions for summary judgment. In a September 16, 2014 Memorandum-Decision and Order, this Court granted Defendants' motions for summary judgment. See Dkt. No. 68.
Presently before the Court is Defendant Mansur Rafizadeh's motion for sanctions against Plaintiff and her counsel.
Defendant Nirvana Spring Water N.Y. Inc. ("Nirvana") is a drinking water bottling company with its principal place of business in Forestport, New York. See Dkt. No. 53 at 1. Defendant Mansur Rafizadeh, age eighty-three, serves as the chairman of the board of directors. Plaintiff Cherie Mealus was an employee at Nirvana from June 2004 through March 2005. After being hired and rehired numerous times, Plaintiff worked at Nirvana from March of 2009 until February 8, 2012.
On January 10, 2012, Barrett Paving Materials, Inc. received an application for employment from Plaintiff. See Dkt. No. 53 at 5. On February 3, 2012, Plaintiff informed her supervisor that she had obtained employment at Barrett Paving and would be leaving her job at Nirvana as of February 17, 2012. Less than a week later, on February 8, 2012, Plaintiff was informed by Barrett Paving that they would not be hiring her after all. On the evening of February 8, 2015, the topic of Plaintiff's alleged sexual harassment appeared for the first time in Plaintiff's correspondence with the person she blamed for the loss of her job opportunity with Barrett Paving. See Dkt. No. 38 at 11; Dkt. No. 53. Plaintiff proceeded to compose an email listing "a few examples of personal harassment and sexual harassment by Mansur." See Dkt. No. 38-2 at 2. After providing eight examples, Plaintiff stated as follows:
My lawyer is ready to proceed with a very public sexual harassment suit against Mansur and Nirvana... Also I have about a hundred or so pictures of dirty micro tests from the Lab. I have addresses of all the states you send water and will send the pictures to all the companies you bottle water for and all the state health departments. That could be very costly to your company. I will go public as well, take the pictures to television stations, newspapers, post all the pics on facebook and myspace and have all my friends repost and I have friends in all states except Hawaii which that one done [sic] matter anyway.... I do not want to hear back from you and anything I do hear back from you can and will be used in my lawsuit if I proceed with it. My lawyer told me to inform you of that. All I am asking is that you don't deny my unemployment and want a settlement in the amount of $5000, 1 thousand per year of service. I want that within on[e] week from today or this all goes public. I will be sending the pictures as well so you know I am not lying about having them. My lawyer is prepared to sue for way more than 5000 for the treatment I endured while employed at Nirvana for almost 5 years.... I want unemployment, the small settlement and my last paycheck and then I will go away forever and you will never hear from me again, otherwise me and 2 others are prepared to go ahead with a very public sexual harassment lawsuit.
During Plaintiff's employment with Nirvana, several of her colleagues witnessed her taking photographs of water samples from the lab that showed contamination. According to Plaintiff's supervisor Leo Hellinger, in substance, Plaintiff said "[i]f anything happened, if I got fired or if I needed a job later, this would be an insurance policy to get back in. She said I have a relative to whom I could show this and have this place shut down." Id. During her deposition, Plaintiff indicated that she took the pictures because she "just wanted to have [them] handy" and because "[s]omeone has got to shut that place down." See Dkt. No. 38-3 at 179.
Plaintiff originally retained the Derek T. Smith Law Group on or about February 9, 2012. See Dkt. No. 71 at 7. Plaintiff argues that "their office conducted a reasonable inquiry into Plaintiff's claims, " including obtaining supporting evidence from a witness which "confirmed aspects of Plaintiff's complaint, " such as "stating that she was called a cunt, screamed at and humiliated, ' told to drink out of a hose like a dog, ' and that she had witnessed Defendant touch Plaintiff's arm and rub her." Id. Further, Plaintiff alleges that medical documentation was also obtained, which demonstrated that Plaintiff sought treatment for depression and anxiety due to sexual harassment, accompanied by a note stating that Plaintiff was advised against working at Defendant's factory due to issues she experienced. See id. at 7-8.
After the Derek T. Smith Law Group sent a claim letter to Defendants on or around February 28, 2012, which was accompanied by a draft complaint that was the basis for Plaintiff's EEOC charge and federal complaint, Plaintiff's case was referred to Phillips & Associates, PLLC, in or about March of 2012. See id. at 8. Plaintiff's case was filed with the EEOC on or about April 2, 2012 with a sworn statement from Plaintiff. Thereafter, Plaintiff's complaint was filed on March 19, 2013 with this Court. Plaintiff's complaint contained the following causes of action: (1) Title VIII hostile work environment; (2) Title VII retaliation; (3) NYSHRL discrimination; (4) NYSHRL retaliation; and (5) common law assault. See Dkt. No. 1.
On February 15, 2014, Defendants filed motions for summary judgment. In a September 16, 2014 Memorandum-Decision and Order, this Court granted Defendants' motions for summary judgment as to each of Plaintiff's causes of action. Specifically, with respect to Plaintiff's hostile work environment claims, the Court found as follows:
Even if this action did not warrant dismissal under the exception in Jeffreys, the undisputed facts clearly show that Plaintiff has failed to produce sufficient evidence to demonstrate that the workplace was "permeated with discriminatory intimidation, ridicule, and insult, that [was] sufficiently severe or pervasive to alter the conditions of [Plaintiff's] employment and create an abusive working environment.'" Gorzynski, 596 F.3d at 102 (quotation omitted). Even if the Court were to find that the environment was objectively hostile and abusive, which it does not, the evidence also makes clear that Plaintiff did not subjectively perceive the environment to be abusive. See id. (citation omitted); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 68 (1986) (indicating that the plaintiff's behavior may be considered in evaluating whether the conduct was unwelcome). Plaintiff has made only conclusory allegations, regarding sporadic incidents, many of which were not abusive and cannot be said to have occurred because of Plaintiff's sex.
See Dkt. No. 68 at 22. Further, the Court found that Plaintiff failed to make out a prima facie case of retaliation. The Court noted that Plaintiff's "contradictory and conclusory allegations regarding Defendant Rafizadeh's conduct towards her are almost entirely refuted by the evidence submitted by Defendants. Even assuming that Defendant Rafizadeh belittled, insulted and shouted at Plaintiff, the evidence submitted fails to demonstrate any causal connection between such actions and any alleged protected activity." See Dkt. No 68 at 25.
In regard to Plaintiff's email sent on February 8, 2014, the Court found that Plaintiff's argument that the email was simply a layperson attempting to settle her sexual harassment case on her own without the assistance of an attorney was entirely without merit. Specifically, the Court concluded:
Plaintiff's argument that the "statements relating to water samples are never directly connected to any request for money" is at best disingenuous. Immediately following Plaintiff discussing the pictures of the dirty water samples and that she is prepared to send the pictures to all the state health departments and companies that Nirvana does business with, she then demands $5, 000, that Defendants' not deny her unemployment benefits, and then issues the following threat: "I want that within on[e] week from today or this all goes public." Dkt. No. 38-2 at 3. Although Plaintiff may not be an attorney and does use the word "settlement" in the email, the quoted language is clearly a threat that she will go public with her pictures of dirty water samples unless she gets $5, 000 and unemployment. Had Plaintiff not spent such a significant portion of the email discussing the pictures she has and all the ways that she can disseminate them, Plaintiff's interpretation may have been plausible.
On October 15, 2014, Defendant Mansur Rafizadeh requested leave to move for sanctions against Plaintiff and her counsel pursuant to Rule 11, Section 1927 and the Court's inherent power, arguing that the motivation behind Plaintiff's "abusive lawsuit, " was not that "she believed she was sexually harassed, " but rather that she "needed money after she left her job, and wanted to punish her former employers for not paying her to keep silent." See Dkt. No. 70-3. According to Defendant, Plaintiff had an improper purpose for this litigation, as evidenced by Plaintiff's February 9 email to blackmail Defendants with pictures of dirty water samples, and that the lawsuit and email illustrate a "single, integrated attempt at extorting a $5, 000 payment" from Defendants. See Dkt. No. 72 at 9. Collectively, Defendant claims that Plaintiff's conduct is sanctionable for the following reasons: (1) Plaintiff's claim was brought in bad faith as part of an extortion scheme; (2) Plaintiff's claim did not have a colorable basis; and (3) Plaintiff's counsel's response to Defendant's notice of the motion for sanctions did not constitute a withdrawal of the offending claims under Rule 11. With respect to Plaintiff's counsel, Defendant argues that Plaintiff's counsel's conduct is likewise sanctionable because: (1) Plaintiff's counsel pursued the case ...