The defendant Yossi Benbassat seeks summary judgment dismissing plaintiff Perez's complaint against him in this action alleging gender based employment discrimination under the New York State Executive Law § 296 et seq. ("NYHRL") and New York City Administrative Code § 8-101 et seq. ("NYCHRL"). Plaintiff Perez opposes the motion.

The court must DENY defendant Benbassat's motion.

Perez was employed by defendant El Al Israel Airlines ("El Al") commencing in 1992, working at various times at either Newark International Airport ("EWR") or John F. Kennedy International Airport ("JFK").

Ten years after Perez began working at El Al, in the summer [*2]of 2002, defendant Licht was transferred by El Al to assume the position of Ground Operations Manager based at JFK. In that position, during most periods, he had overall responsibilities for El Al operations at its U.S. airports, including EWR and JFK, and therefore directly supervised Perez. Licht transferred back to Israel in 2007.

Defendant Benbassat was hired by El Al as Human Resources and Administration Manager in August 2005, a position which he continues to hold to date.

Perez alleges that upon his arrival in New York City, Licht engaged in a pattern of comment and behavior toward her, which created a hostile work environment. She claims that when she rejected his sexual demands, El Al, through its employees specifically Benbassat, acquiesced in and condoned Licht's behavior, by dissuading her from complaining and later subjecting her to adverse employment actions, including termination.

With respect to Perez's interaction with Benbasset, after Perez's second demotion, in early November 2006, Benbasset met with her at JFK to present her with a written warning relating to a passenger handling matter that had been discovered during the investigation of the JFK Station Manager. At the time of that meeting, El Al was offering a Voluntary Severance Program (the "Buy-out") for which all employees, including Perez, were eligible. According to Perez, during that meeting, she complained to Benbassat about Licht's sexual harassment. She asserts that Benbassat, speaking to her as a "friend" urged her to take the Buy-out because no one in El Al management would ccorroborate her claims and she would be unable to secure employment elsewhere because of her threats. According to Perez, he further suggested that she sue Licht personally after she and Licht left El Al.

According to Benbassat's deposition testimony, Perez never made any complaints about sexual harassment at that meeting, but he offered the Buy-Out to her, the only employee in the position of coordinator to whom he made such offer, because she expressed unhappiness with El Al. Perez rejected the Buy-Out and continued her employment at El Al.

On November 6, 2006, Perez, through her counsel, made a formal complaint of sexual harassment. Benbasset conducted an internal investigation of the claim, with El Al's counsel, interviewing Perez (in the presence of her counsel), Licht and other managers and employees with potential knowledge of the facts relating to the claim. After concluding the investigation, Benbassat wrote a letter in his own name, concluding that El Al was unable to find evidence corroborating Perez's claims.

Plaintiff was terminated effective December 2006 when, according to El Al, the position of JFK Coordinator was eliminated and, together with several others, she was laid off. [*3]

This action was filed in February 2007. In addition to El Al and Licht, the complaint names two other individual defendants: Chaim Romano, El Al's President, based in Israel, and Harel Chalamish, a pilot with El Al, who served on a temporary assignment in the United States as Director of Service

and Operations from 2005 to 2007. In that position, Chalamish served as Licht's manager. By Stipulation dated March 2009, Perez discontinued this action with prejudice against Romano and Chalamish.

The complaint alleges, in pertinent part that

That... Benbassat "aided and abetted Licht in covering up the sexual harassment and not taking any action on behalf of El Al to prevent it from continuing, condoned Licht's conduct, and also assisted in having plaintiff demoted so that she be intimidated from taking any further action."

Defendant Benbassat argues that the complaint against him must be summarily dismissed because he has established prima facie, as a matter of fact and law, that he neither sexually harassed Perez nor aided and abetted the alleged sexual harassment of Perez carried out by Licht.

Perez does not dispute that Benbassat never asked her for sexual favors or spoke to her in a vulgar or sexual manner. However, she contends that Benbassat handled her complaints in a "flippant, sophomoric" and "outrageous" manner and that such misfeasance aided and abetted Licht's illegal comments and overtures. She also contends that Benbassat "at best performed a perfunctory inadequate investigation and chose to take his buddy Licht's word for it that Licht had done nothing wrong", rather than interviewing the eye-witness to "Licht's physically putting his hand on my backside" or any of the pilots who wrote and signed a petition complaining that she had been improperly treated when she was removed from her position as Station Manager at EWK. She alleges that Benbasset terminated her employment with El Al in order to curry favor with Chaim Romano, Benbasset's supervisor, and a close personal friend of Licht.

Perez contends that she has suffered damages because of Benbasset's misconduct. She contends that she has been injured both because she is no longer working for El Al and because she is unable to obtain employment in the airline industry, the industry in which she worked for sixteen years. The one job offer that she received from Jet Blue was never consummated because, she asserts, El Al has failed to confirm her employment at El Al.

Perez does not dispute that defendant Benbasset has no ownership interest in El Al or authority to independently hire or fire employees at El Al. In that regard, defendant Benbassat is correct that the Court of Appeals held in Patrowich v Chemical [*4]Bank, 63 NY2d 541 (1984), that a corporate employee, though he has a title as the manager or supervisor, is not individually subject to suit with respect to discrimination based on age or sex under the NYHRL if he is not shown to have any ownership interest or any power to do more than carry out personnel decisions made by others.

However, the papers at bar raise an issue of fact whether Benbasset had any power to do more than carry out personnel decisions made by others. For example, Benbasset's deposition testimony that Perez was the only coordinator who he "asked to leave" when the Buy-out package became available in 2006, is some evidence that he had the power or discretion to do more than simply carry out the personnel decisions made by others. Nesathurai v University of Buffalo, 23 AD3d 1070, 1071-1072 (4th Dept 2005).

Moreover, in Patrowich, there was no allegation that the manager or supervisor either aided or abetted or retaliated against the plaintiff worker for discriminatory reasons. The First Department in Peck v Sony Music Corporation, 221 AD2d 157(1st Dept 1995) made clear that Patrowich is not a bar to

maintenance of an action as to a defendant's liability as an aider and abettor of the alleged discriminatory conduct. As Perez alleges that Benbasset aided and abetted Licht's alleged discriminatory conduct, this case is distinguishable from Patrowich and Peck is the controlling authority.

The [NYHRL] Executive Law, §§ 296(6) [illegal to aid, abet] and 296(7) [illegal to retaliate], provides that an individual may be held liable for aiding and abetting discriminatory conduct.

Defendant argues that courts have found a claim for aider and abettor discrimination against a co-employee who is not an "employer" under NYHRL § 296(1) only when such employee actually or wilfully participated in the conduct giving rise to a discrimination claim. Benbassat's argument begs the question of whether he may be cast in damages pursuant to NYHRL as an aider and abettor, since the record raises an issue of fact whether he actually and wilfully participated in the conduct giving rise to the discrimination claim. Both Perez's deposition testimony and her affidavit submitted in opposition to the motion constitute admissible evidence that Benbassat aided and abetted Licht's alleged discriminatory conduct. As stated above, Benbasset's deposition testimony is arguably at odds with the statement in his affidavit that he had no input in El Al's decision to eliminate Perez's position and lay her off. His testimony that in 2006, he offered her and no other coordinator the Buy-out because "she told me that she is not happy and everybody hates [*5]her and she hates the people there" and that he advised her that "this is a good opportunity for you to leave" tends to show that he had discretion with respect to personnel decisions.

With respect to her retaliation claims, Benbasset contends that Perez said nothing about unlawful conduct on the part of Licht when they discussed the Buy-out option, but Perez's contrary testimony raises issues of credibility. Her deposition testimony that Benbasset responded to her complaint about Licht's harassment by encouraging her to accept the Buy-out and to forebear on any complaints as long as she and Licht continued to be employed at El Al, are in marked contrast to his statements that she never raised such complaints. In addition, the petition of the El Al pilots that offered praise for Perez after her first "demotion" in January 2006 is consistent with Perez's contention that Benbassat offered her the Buy-out package to silence her from complaining about Licht, and not to end her suffering where "the place hates her". So too, Perez's testimony that when offering her the Buy-out, Benbassat predicted that no one would corroborate her claims, raises issues of fact, including but not limited to whether the outcome of Benbassat's investigation of her subsequent written complaint was foregone and whether Perez's lay-off constituted a failure to take adequate remedial measures and pretext for retaliation. Thus, whether Benbassat wilfully participated in conduct that concealed Licht's discriminatory conduct implicates credibility and has not been refuted, as a matter of fact and law, but must await trial.

Accordingly, it is hereby

ORDERED that the motion for summary judgment dismissing the complaint against defendant Yossi Benbasset is DENIED ; and it is further

ORDERED that the parties are directed to appear for a pre-trial conference before this court on March 1, 2010, at 2:30 P.M. in Part 59, Room 1254, 111 Centre Street, New York, New York 10013 to set a trial date.

This is the decision and order of the court.