Davis v Phoenix Ancient Art, S.A. (2013 NY Slip Op 50613(U))

Davis v Phoenix Ancient Art, S.A.

2013 NY Slip Op 50613(U) [39 Misc 3d 1214(A)]

Decided on April 22, 2013

Supreme Court, New York County

Edmead, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through April 25, 2013; it will not be published in the printed Official Reports.

In this sexual discrimination case by plaintiff Emily Davis ("plaintiff"), defendants Phoenix Ancient Art, S.A. d/b/a Petrarch ("Petrarch"), and Hicham Aboutaam ("Aboutaam") (collectively, "defendants") move pursuant to CPLR 3211 (a)(7) for an order dismissing plaintiff's complaint and for attorneys' fees.

Plaintiff was employed as a consultant at Petrarch, an antique art gallery located at 47 East 66th Street, New York, New York, from May 2010 until approximately May 2012. Aboutaam is an owner and the President of Petrarch. [*2]

Plaintiff alleges that in September 2010, while at an art fair in Paris, defendant Aboutaam came to plaintiff's hotel room, grabbed her and demanded that she sleep with him and then forcibly kissed her. Aboutaam told her not to tell anyone about the incident (Complaint, ¶¶11-22).

Plaintiff further alleges that on numerous occasions during her employment, defendants' clients who came into the art gallery, "openly questioned Plaintiff about her sex life" in the presence of Aboutaam and that Aboutaam "joined, condoned and acquiesced in the hostile environment by laughing at the comments" (id. at ¶ 25). The alleged harassment culminated in March 2012, when, in Aboutaam's presence, a client asked plaintiff and her co-worker Karen Simons "sexual questions." When the client and Aboutaam went into the back room, plaintiff left the gallery "in order to remove herself from the inappropriate treatment by the client" (id., at ¶27). The next day, Aboutaam reprimanded plaintiff for "bailing" on him (id., ¶¶ 23-28; Davis Affidavit, ¶11).

Plaintiff also alleges that she was subject to verbal abuse by another employee, Ms. Simons, who repeatedly told her she "hated" her and "could not work with her" (id., at 29-31). Plaintiff alleges that she was constructively discharged as she had no choice but to leave the intolerable work conditions.

Thereafter, plaintiff commenced this action for sex discrimination under the New York State Human Rights Law (New York Executive Law § 296 et seq.) ("NYSHRL") and the Administrative Code of the City of New York §8-107 et seq. (the "NYCHRL"), seeking compensatory and punitive damages, damages for physical pain and suffering, back pay, front pay, interest, costs and attorneys' fees. Defendants now move to dismiss these claims.

In support of their motion, defendants argue that plaintiff fails to state a cause of action for harassment or hostile work environment under NYSHRL. The alleged conduct is not so "severe or pervasive" as to create an actionable hostile or abusive environment. After the single and isolated incident in Paris, plaintiff continued working for Aboutaam without complaining about it or about any other alleged instances of purported sexual harassment, for approximately 20 months until she voluntarily left in May 2012. The vague allegations about Petrarch's clients who "openly questioned plaintiff about her sex life" lack specificity. And, plaintiff cannot establish a sex-based hostile work environment based on her co-worker Simons's hostility towards her, because plaintiff does not allege that such hostility had anything to do with her sex or gender.

Next, plaintiff likewise fails to state a cause of action for harassment or hostile work environment under NYCHRL. Although this statute does not require that sexual harassment be "severe and pervasive" to be actionable, the alleged conduct during the Paris incident was trivial as it did not stop plaintiff from continuing her employment with the company for another 20 months thereafter. And, the vague complaints about unspecified client's comments are no more than ordinary, everyday conversation.

Further, plaintiff fails to adequately allege constructive discharge, i.e., that defendants deliberately created working conditions so intolerable, difficult or unpleasant that a reasonable person would have felt compelled to resign. Plaintiff does not claim that she could not perform her job or that anyone prevented her from performing her job; that she was given work, different from the one she was hired to perform; that any adverse action was taken against her or that the [*3]alleged constructive discharge was precipitated by any severe mistreatment. Furthermore, plaintiff does not allege that she complained and the company did nothing.

Plaintiff likewise failed to plead any facts in support of her claim for retaliation, as she merely alleges in paragraph 1 of the Complaint that this action is for sex discrimination and retaliation. Plaintiff did not allege that she engaged in any protected activity, i.e., complaining about any harassment, which resulted in retaliation.

And in any event, Phoenix should be dismissed from this action because it wasnot plaintiff's employer. As shown in plaintiff's Forms 1099 and W-2 and in the application for unemployment benefits, she was employed by Petrarch, Phoenix's agent.

Finally, defendants seek attorneys' fees pursuant to NYC Administrative Code 8-502 (f), as a prevailing party.

In opposition, plaintiff contends that her allegations meet the standards of both NYSHRL and NYCHRL. Plaintiff adequately pleaded a hostile environment based on Aboutaam's conduct in the Paris hotel and the comments from clients about her sexual activity. Plaintiff submits an Affidavit, where she states that during her first week of employment, "a client made a comment [to her] about 'holding his penis' while Aboutaam laughed about it (plaintiff Affidavit, ¶¶9- 10). Such conduct is more than 'petty slights,' since the plaintiff was "constantly upset by such comments and scared to confront her boss after the Paris incident (plaintiff Affidavit, ¶¶6-7). After dealing with sexual comments for two years, plaintiff eventually resigned.

Furthermore, NYCHRL's standard for sexual harassment is not as stringent as that of NYSHRL, and only requires that the offending conduct must be within the "broad range of conduct that falls between 'severe and pervasive' on the one hand and a 'petty or trivial inconvenience' on the other" regardless of whether such statements may have been isolated. And, questions of severity or pervasiveness of the discriminatory conduct apply only to damages, not liability.

Next, plaintiff has adequately pleaded her claim for a constructive discharge. Plaintiff had no choice but to resign after many months of sexual harassment, verbal abuse from a co-worker, and a general fear and expectation that she "act" in a particular way with clients in front of Aboutaam (plaintiff Affidavit, ¶10). Plaintiff did leave the art gallery at one point when the comments were more than she could bear (id., ¶11). And, after Aboutaam forcibly kissed plaintiff in Paris she felt she could not speak up about the sexual comments (id., ¶ 7).

Finally, plaintiff proposes to amend the caption to reflect the proper name of her employer as Petrarch.^[FN1]

In reply, defendants reiterate that plaintiff's complaint fails to plead harassment under either NYSHRL or NYCHRL. Based on the alleged facts, no reasonable person could find that plaintiff was subjected to a hostile work environment, since there are no facts that harassment was severe or pervasive that it altered her working environment in any way, or that the conduct would be objectively or subjectively offensive to a reasonable person. There is no evidence that defendants fostered a harassing office environment, and plaintiff, by her own admissions, never complained of any harassment. Notably, plaintiff no longer pursues the argument of harassment [*4]based on the co-worker Simons's "verbal abuse."

Further, plaintiff fails to address the fact that shortly after the alleged harassment in Paris, plaintiff, who initially was hired as a contractor, accepted a full-time employment position with Petrarch. She also does not allege that her working conditions were altered in any way and she never complained to anyone about any incidents of harassment.

Plaintiff's allegations of harassment by a customer who purportedly asked whether she would like to "hold his penis," present this comment out of context. As stated in the Affidavit of the manager of Petrarch Alexander Gherardi, plaintiff chose to work in a gallery selling antiques, some of which had sexual connotations (Gherardi Affidavit); she worked in the gallery for two years and never indicated that selling or promoting such art offended her. The customer who asked "to hold his penis," was purchasing a piece of ancient art which represented a male body part (Gherardi Affidavit,¶4; exhibit A). While holding the subject piece of art, he jokingly asked that question, referring to the phallic-shaped piece of art (id.). Considering the circumstances in which the alleged comment was made, it cannot be said that there was hostile or abusive environment created or directed at plaintiff. A trier of fact would find it to be a humorous situation.

Likewise, a client asking plaintiff "sexual" questions, even if true, occurred on one occasion and plaintiff did not complain. That Aboutaam "reprimanded" her on one occasion when she left work in the middle of the day without telling anyone after a customer purportedly offended her does not show an "abusive" environment.

Plaintiff fails to allege constructive discharge because there is no allegation of any adverse action taken against plaintiff or an altered work environment due to harassment. To the contrary, as the company was preparing for an important show, it relied on plaintiff's work. Documentary evidence shows that one week before plaintiff quit, she had a meeting with Gherardi who set forth the schedule of important deadlines through December 2012 (Gherardi Affidavit, ¶ 7; Gherardi's memorandum, exhibit B). Plaintiff's allegations that "verbal abuse" from a coworker and client comments "condoned by her supervisor" ultimately forced her resignation, do not constitute altered environment or intolerable conditions that forced her to quit. And in any event, that a customer made a joke about a phallic piece of art and people laughed, does not show that her supervisor "condoned" harassing behavior.

Finally, plaintiff has failed to oppose the portion of defendants' motion seeking dismissal of her retaliation claim.

On a motion addressed to the sufficiency of a complaint pursuant to CPLR 3211 (a)(7), the facts pleaded are presumed to be true and are accorded every favorable inference (see Nonnon v City of New York, 9 NY3d 825 [2007]; Leon v Martinez, 84 NY2d 83, 87-88, 614 NYS2d 972, 638 NE2d 511 [1994]). However, allegations consisting of bare legal conclusions, as well as factual claims inherently incredible or flatly contradicted by documentary evidence are not entitled to such consideration (Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81, 692 NYS2d 304 [1st Dept 1999], affd 94 NY2d 659, 709 NYS2d 861, 731 NE2d 577 [2000]). The court's inquiry is limited to determining whether the complaint states any cause of action, not whether there is evidentiary support for it (Rovello v Orofino Realty Co., 40 NY2d 633, 635-636, 389 NYS2d 314 [1976]). [*5]

Where the parties have submitted evidentiary material, including affidavits, the pertinent issue is whether claimant has a cause of action, not whether one has been stated in the complaint (see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; R.H. Sanbar Projects, Inc. v Gruzen Partnership, 148 AD2d 316, 538 NYS2d 532 [1st Dept 1989]). Affidavits submitted by a plaintiff may be considered for the limited purpose of remedying defects in the complaint (Rovello v Orofino Realty Co., 40 NY2d 633, 635-36 [1976]; Arrington v New York Times Co., 55 NY2d 433, 442 [1982]). As to affidavits submitted by the defendant/respondent, "[a]ffidavits submitted by a respondent will almost never warrant dismissal under CPLR 3211, unless they "establish conclusively that [petitioner] has no [claim or] cause of action" (Lawrence v Miller, 11 NY3d 588, 873 NYS2d 517 [2008] citing Rovello v Orofino Realty Co., 40 NY2d 633, 636 [1976]).

Defendants' motion is granted as to plaintiff's claim under NYSHRL §296 (1)(a), and denied as to her claim under NYCHRL §8—107(1)(a).

The Human Rights Law, as set forth in Executive Law §296 (1)(a), makes it an unlawful discriminatory practice for an employer to discriminate against an individual in compensation or in terms, conditions or privileges of employment because of the individual's sex (NYSHRL §296 [1][a]). In analyzing actions under Executive Law § 296(1)(a), New York courts have adopted principles which define actionable sexual harassment under Title VII of the Civil Rights Act of 1964 (42 USC § 2000e et seq. ; see 42 USC § 2000e—2 [a][1]; see generally, Espaillat v Breli Originals, 227 AD2d 266, 268, 642 NYS2d 875 [1st Dept 1996]; Matter of Father Belle Community Ctr. v New York State Div of Human Rights, 221 AD2d 44, 51 642 NYS2d 739 [1st Dept 1996], lv denied 89 NY2d 809, 655 NYS2d 889 [1997]). Sexual harassment that results in a "hostile or abusive work environment" is prohibited as a form of employment discrimination (Meritor Savings Bank, FSB v Vinson, 477 US 57, 66 [1986]).

An actionable hostile work environment exists "when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment" (Hernandez v Kaisman, 103 AD3d 106, 957 NYS2d 53 [1st Dept 2012], quoting Harris v Forklift Systems, Inc., 510 US 17, 21 [1993][internal quotation marks omitted]).

"[W]hether an environment is hostile' or abusive' can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance" (Hernandez at 111, quoting Harris v Forklift Systems at 23). In addition, "the conduct must both have altered the conditions of the victim's employment by being subjectively perceived as abusive by the plaintiff, and have created an objectively hostile or abusive environment - one that a reasonable person would find to be so" (Hernandez, citing Forrest v Jewish Guild for the Blind, 3 NY3d 295, 311, 786 NYS2d 382 [2004], citing Harris at 21).

Here, the specific conduct alleged by plaintiff in the complaint, even if true, is legally insufficient to establish that the workplace was "permeated with discriminatory intimidation, ridicule and insult,'" and that the alleged harassment was so "severe or pervasive" as to alter the conditions of her employment (Ferrer v New York State Div of Human Rights, 82 AD3d 431, [*6]918 NYS2d 405 [1st Dept 2011], citing Harris v Forklift Sys., 510 U.S. 17, 21, 114 S.Ct. 367 [1993]). "[I]solated remarks or occasional episodes of harassment will not support a finding of a hostile or abusive work environment" [under NYSHRL] (see Matter of Father Belle Community Ctr. v New York State Div of Human Rights, 221 AD2d 44, 51 642 NYS2d 739 [1996], lv denied 89 NY2d 809, 655 NYS2d 889 [1997][citations omitted]).

Indeed, the alleged one-time incident in Paris and the clients' "sexual" questions and comments, while offensive, were too isolated and occasional to rise to an actionable level under NYSHRL. Furthermore, the alleged conduct of plaintiff's co-worker, telling plaintiff that she "hated" her and "could not work with her," cannot support a claim for a hostile environment based on sexual harassment, since there is no allegation that such hostility was based on plaintiff' sex or gender.

Thus, plaintiff failed to plead a meritorious cause of action for sexual harassment under NYSHRL.^[FN2]

Unlike under the NYSHRL, to state a prima facie case under NYCHRL, a plaintiff need not demonstrate that he or she was subject to "severe and pervasive" sexual harassment; plaintiff need only demonstrate that he/she "has been treated less well than other employees because of her/his gender" (see Hernandez v Kaisman, 103 AD3d 106, 957 NYS2d 53 [1st Dept 2012]; McRedmond v Sutton Place Restaurant and Bar, Inc., 95 AD3d 671, 945 NYS2d 35 [1st Dept 2012], quoting Williams v New York City Hous. Auth., 61 AD3d 62, 78 [1st Dept 2009][holding that the NYCHRL's "uniquely broad and remedial purposes . . . go beyond those of counterpart State or federal civil rights laws"]). The First Department in Williams noted that the " severe or pervasive' test reduces the incentive for employers to create workplaces that have zero tolerance for conduct demeaning to a worker in a protected class. In contrast, a rule by which liability is [*7]normally determined simply by the existence of differential treatment (i.e., unwanted gender-based conduct) maximizes the law's deterrent effect" (Williams at 76)(emphasis added).

The Court of Appeals has emphasized that the amendment of Section 8—130 of the NYCHRL by the Restoration Act 2005 ^[FN3] was enacted to ensure the liberal construction of the NYCHRL by requiring that all provisions of it be construed "broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible" (see Albunio v City of New York, 16 NY3d 472, 477—78, 947 NE2d 135 [2011]). And, questions of severity or pervasiveness of the discriminatory conduct apply only to damages, not liability (Hernandez v Kaisman, 957 NYS2d at 53, 58, citing Williams v New York City Hous. Auth., 61 AD3d 62, 76).

Bearing these principles in mind, the court holds that plaintiff adequately stated her claim for sexual harassment under the NYCHRL.

In Hernandez, where an employer defendant sent several e-mails containing offensive sexual media content to his employees, touched a female employee's buttocks while suggesting that she "tighten" it up, and suggested that another female employee get a breast enlargement, the the First Department held that the employer's conduct subjected female employees to differential treatment and thus, could support hostile work environment claim under NYCHRL. The court held:

Here, the allegations of Aboutaam's asking plaintiff to sleep with him during the Paris business trip and then forcibly kissing her, in conjunction with his participation in the clients' questions/comments about plaintiff's sexual life, are within the "broad range of conduct that falls between 'severe and pervasive' on the one hand and a 'petty or trivial inconvenience' on the other" (Hernandez v Kaisman, at 115, quoting Williams, 61 AD3d at 80).

Furthermore, while such conduct and statements may have been isolated, that is irrelevant under the NYCHRL, since, as the Williams court noted, "[o]ne can easily imagine a single comment that objectifies women being made in circumstances where that comment would, for example, signal views about the role of women in the workplace and be actionable" (Williams, 61 AD3d at 80, n 30). Here, that the alleged comments of sexual nature were made to plaintiff or her co-worker, in plaintiff's presence; that Aboutaam laughed and joined in with such comments; and that plaintiff felt like she was required to "play along" in order to keep defendants' clients happy, "signaled that defendant considered it appropriate to foster an office environment that degraded women" (Hernandez).

And, "[b]ecause, at the very least, defendants' conduct can be characterized as having subjected plaintiffs to differential treatment,' the broad remedial purposes of the City HRL would be countermanded by dismissal of the claim" (Hernandez at 115).

Defendants' application for attorneys' fees pursuant to Administrative Code § 8-502 (f) is denied. Section §8-502, entitled "Civil action by persons aggrieved by unlawful discriminatory practices," provides that "[i]n any civil action commenced pursuant to this section, the court, in its discretion, may award the prevailing party costs and reasonable attorney's fees." However, based on the above, defendants have failed to establish that they prevailed on all aspects of their motion.

ORDERED that the motion by defendants Phoenix Ancient Art, S.A. d/b/a Petrarch pursuant to CPLR 3211 (a)(7) for an order dismissing the complaint of plaintiff Emily Davis is granted solely to the extent that plaintiff's first cause of action for [sexual] discrimination under the NYSHRL is dismissed, and the motion is otherwise is denied; and it is further

ORDERED that, upon all the parties' consent, the caption in this case is amended to replace Phoenix Ancient Art with Petrarch, d/b/a Electrum as defendant; and it is further

ORDERED that upon receipt of a copy of this order, the Trial Support Office (Room 158) shall amend the caption accordingly; and the new caption shall read as follows:

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK: PART 35

—————————— ——————————— 51;———————————& #151;x

EMILY DAVIS,

Defendants.

—————————— ——————————— 51;———————————& #151;-x

And it is further

ORDERED that defendants shall serve their answer to the complaint with the amended caption within 20 days of the date of such amendment, and parties shall appear for a preliminary conference at Room 438, Part 35, 60 Centre Street, New York, New York, on May 28, 2013, at 2:30 p.m.; and it is further

ORDERED that counsel for defendants shall serve a copy of this order with notice of entry upon all parties within 20 days of entry.

ORDERED that, upon all the parties' consent, the caption in this case is amended to replace Phoenix Ancient Art with Petrarch, d/b/a Electrum as defendant; and it is further

ORDERED that upon receipt of a copy of this order, the Trial Support Office (Room 158) shall amend the caption accordingly, and the new caption shall read as follows:

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK: PART 35

—————————— ——————————— 51;———————————& #151;x

EMILY DAVIS,

Defendants.

—————————— ——————————— 51;———————————& #151;-x

And it is further

ORDERED that counsel for defendants shall serve a copy of this order with notice of entry upon all parties within 20 days of entry.

This constitutes the decision and order of the court.

Dated ____________ENTER: _______________________, J.S.C.

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