The following e-filed papers numbered 21-24, 33-35 and 38submitted and considered on this motion by defendant the REGINALD CHALMERS, (hereinafter referred to as “Defendant”) seeking an Order pursuant to Civil Practice Law & Rules (hereinafter referred to as “CPLR”) 3211 (a)(5) and (a)(7) dismissing plaintiff GAIL PALMER’s (hereinafter referred to as “Plaintiff”) Complaint in its entirety with prejudice, and for such other and further relief as this Court deems just and proper. Papers Numbered Notice of Motion- Memo of Law- Affirmation-Exhibits EF 21-24 Memo of Law in Opposition-Affidavit-Exhibits EF 33-35 Reply Memorandum of Law EF 38 The facts are alleged as follows: this action arises out of an employment relationship between Plaintiff and named defendant VIVIAN COOK (hereinafter referred to as “Cook”). Plaintiff is an African American woman over the age of 40 years old. Cook is an elected official of the New York State Assembly (hereinafter referred to as “NYSA”). Plaintiff was employed by Cook from January 1, 2006 to May 19, 2006 (hereinafter referred to as the “2006 Employment”) at which time her salary was $36,000 per annum, Plaintiff resigned from her position in May of 2006 due to a hostile and intimidating work environment created by Cook. Specifically, during that time Cook cursed at and excoriated her and her co-workers. Additionally, Cook directed multiple derogatory racial epithets towards Plaintiff, despite Plaintiff’s regular requests that Cook refrain from doing so. Subsequently, in 2010 Cook solicited Plaintiff to return to work at her office. Plaintiff agreed to take the position claiming that the comprehensive medical benefits were appealing to her and her family because her husband was chronically ill and totally disabled. Plaintiff worked for Cook from April 30, 2010 until December 31, 2016 (hereinafter referred to as the “2010- 2016 Employment”) at that time Plaintiff’s salary was $30,000. According to Plaintiff, the $6,000 difference in her pay was due to Plaintiff’s need to leave work at 4 P.M. as opposed to 5 P.M. However, Plaintiff still worked an eight (8) hour work day. At this time, Plaintiff’s job duties included: “interfacing with constituents, performing research, representing the Member, tracking legislation, maintaining responsibility for constituent services, maintaining files, performing routine office tasks, maintaining the Member’s calendar and making appointments, media liaison and outreach, and other related duties”. Plaintiff claims during her 2010-2016 Employment Cook’s actions remained unchanged. Plaintiff contends that Cook directed racial slurs and epithets towards her. Furthermore, Cook questioned whether Plaintiff’s husband was actually sick. During her 2010-2016 Employment the Defendant began working at the office. Defendant is allegedly Cook’s grandson. Plaintiff claims Defendant received full pay while working less than the forty (40) hours that his position required. Plaintiff claims that Defendant was volatile and targeted her because of her gender and her sick husband. On one occasion, Defendant became aggressive and agitated because Plaintiff did not bring him McDonald’s breakfast. According to Plaintiff, Defendant began to yell obscenities and became loud and verbally abusive towards Plaintiff. In response, Plaintiff began to shake. Cook witnessed the incident but took no action. As a result, Plaintiff left work and reported the incident to Kathleen Joyce the director of human resources for NYSA (hereinafter referred to as “Joyce”). In or around August of 2015, Plaintiff filed an internal harassment and discrimination complaint against NYSA. NYSA, through Joyce, informed Plaintiff that the incident would be investigated with the help of outside counsel. During the investigation Plaintiff was placed on administrative leave. Plaintiff could not return to work until it was deemed advisable by the mutual agreement of Cook, NYSA and the aforementioned outside counsel. Plaintiff received a letter from NYSA on August 27, 2015 (hereinafter referred to as the “August Letter”). The August Letter set forth a plan to prevent retaliation. In sum, the letter directed that all members of the office were to interact with each other professionally, that any complaints resulting from divergence from the plan were to be sent to either Cook or NYSA. In part, the August Letter stated “[i]n its efforts to create a workplace free from unlawful discrimination and harassment, the Assembly is committed to maintaining the highest standards of ethical conduct from its employees…”. Plaintiff received another letter from NYSA on September 8, 2015 (hereinafter referred to as the “September Letter”). The September Letter indicated that Defendant’s actions were deemed not in violation of NYSA’s policy. However, the letter also indicated that the investigation did conclude a “heated exchange” occurred and “…any attempt at retaliation against any party is expressly forbidden by the Assembly’s policy, and subject to censure.” Plaintiff returned to work at the conclusion of the investigation and alleges the work environment remained hostile and that she experienced retaliatory behavior. Prior to Plaintiff’s return, Cook had the locks to the office changed and refused to give Plaintiff a key. Thereby, requiring Plaintiff to wait for another co-worker to arrive in the morning in order to gain access to the office. Plaintiff claims Cook directed racially profane statements towards her. On one occasion, Plaintiff’s decision to wear, what she describes as, a “sleeveless but professional tailored dress” sparked multiple derogatory insults from Cook. At this time, Plaintiff’s husband needed to begin chemotherapy. Plaintiff requested to use her vacation time on eight (8) consecutive Friday’s to bring him to chemotherapy. Initially, Cook agreed that Plaintiff could leave the office between 10 a.m. and 2 p.m. on those days. However, Plaintiff claims after taking her husband to his second Friday chemotherapy appointment Cook refused to allow her to take him to the remaining six (6). As a result, Plaintiff claims she had to “scramble” to have family members accompany her husband to those visits. Subsequently, Plaintiff’s husband was placed on hospice care. Plaintiff claims Cook made negative comments about Plaintiff’s husband’s health, comments that induced fear, anxiety and pain in Plaintiff. On September 4, 2016, Plaintiff’s husband passed away. Plaintiff requested that Cook not attend the service at Plaintiff’s home to which Cook complied. Plaintiff requested five (5) extra days for bereavement which Cook denied. Plaintiff called NYSA seeking to learn of a way to overturn Cook’s denial but was told that the decision was solely within Cook’s discretion. Ultimately, Cook declined to renew Plaintiff’s appointment for 2017. On December 7, 2018, Plaintiff instituted this action by filing a Summons and Complaint. Plaintiff’s causes of action are as follows: discrimination, retaliation and to New York City Administrative Code §8-107 (hereinafter referred to as “NYCHRL”), discrimination, retaliation and hostile work environment pursuant to New York State Executive Law §296 (hereinafter referred to as “NYHRL”), violation of New York State Public Officers Law §73 and intentional infliction of emotional distress. CPLR 3211 (a)(5) This Court has addressed all named defendants’ allegations related to CPLR 3211 (a)(5) in the two prior motion sequences numbered one (1) and two (2) under this index number and signed simultaneously. CPLR 3211 (a)(7) Plaintiff alleges Chalmers discriminated against her on the basis of gender and her caregiver status pursuant to NYSHRL and NYCHRL. In Emengo v. State of New York (2015 WL 5915286 *3 [Sup. Ct. NY County, October 9, 2015, No. 150733/2013]) the court states that the State legislature waived sovereign immunity when it passed the NYSRL and made its provisions applicable to the State. Therefore, the State, its agencies and employees are subject to the NYSRL for actions that envision direct adherence to a governing rule or standard with a compulsory result. However, the court notes absolute immunity still exists for public employees “performing discretionary functions, involving the exercise of reasoned judgment which could typically produce different acceptable results even where the State has generally waived its sovereign immunity”. (2015 WL 5915286, *3.) Additionally, individuals may not be held liable when they are acting within the scope of their duties. Regarding NYCHRL, New York City lacks the power to waive the State’s sovereign immunity. (2015 WL 5915286, *3.) Therefore, the State, its agencies and employees engaged in carrying on the State’s governmental functions are not subject to the NYCHRL. In Emengo, plaintiff alleged discrimination on the basis of race, national origin and color. (2015 WL 5915286, *1) The plaintiff sued the State of New York, the State agency he worked for and prior supervisors at the state agency individually and within their capacity as employees of the State. (2015 WL 5915286, *1.) The court determined it had subject matter jurisdiction over plaintiff’s NYSRL claims and plaintiff’s NYCHRL claims only to the extent the claims are against “the individual defendants, in their individual capacities, for ministerial acts of discrimination, aiding and abetting discrimination and retaliation against plaintiff.”(2015 WL 5915286, *3.) Under both NYSHRL and NYCHRL, the plaintiff must allege 1. membership in a protected class; 2. qualification for the position and satisfactory performance; 3. adverse employment actions and 4. such adverse actions occurred under circumstances that give rise to an inference of discrimination. (2015 WL 5915286, *4.) According to the court, an adverse employment action must be material examples include: termination, demotion evidenced by a decrease in salary, less distinguished title, material loss of benefits, diminished material responsibility “or other indices…unique to a particular situation”. (2015 WL 5915286, *3.) NYSHRL A plain reading of NYSHRL indicates that it intends to place liability upon, amongst others, “employers”, “employment agencies”, “listing agencies” and “labor organizations”. A plain reading of NYSRL does not attach liability to an employee for discriminatory acts. Plaintiff has not alleged facts sufficient to suggest that Defendant was her employer (see Patfowich v. Chemical Bank, 63 NY2d 541 [1984]). Therefore, Defendant’s motion to dismiss Plaintiff’s NYSRL claims as asserted against Defendant is granted. NYCHRL Defendant concedes that NYCHRL extends liability to co-employees under limited circumstances. Defendant cites Priorie v. New York Yankees (307 AD2d 67, 74 [1st Dept 2003]) where plaintiff alleged his termination was due to his complaints of sexual harassment grounded in the conduct of other employees. Among other things, plaintiff alleged discrimination pursuant to NYCHRL based on his sexual orientation against co-employees. (id at 72.) The court held to find a co-employee jointly liable for an employer’s discriminatory practice the co-employee “must be found to possess the power to do more than simply carry out personnel decisions made by others’.”(internal citations omitted) (id at74.) The NYCHRL opens the door to causes of action against co-employees who “act with or on behalf of the employer in hiring, firing, paying, or in administering the ‘terms, conditions or privileges of employment’” (id). Plaintiff does not allege that Chalmers possessed any supervisory authority. Therefore, Plaintiff cannot sustain a cause of action against Chalmers pursuant to NYCHRL. Defendant’s motion to dismiss Plaintiff’s NYCHRL claims as against Defendant is granted. Intentional Infliction of Emotional Distress Defendant argues “[t]he causes of action sounding in…intentional infliction of emotional distress are governed by a one-year statute of limitation…A cause of action alleging intentional infliction of emotional distress accrues on the date of injury”. (Abdullah Wilson v. Roger Erra, 94 AD.3d 756 [2d Dept 2012] see CPLR 215[3].) Plaintiff’s claim for intentional infliction of emotional distress is denied as time barred, as against the Defendant. Therefore it is, ORDERED, that Defendant’s motion to dismiss Plaintiff’s NYCHRL and NYSHRL claims is granted; and it is further, ORDERED, that Defendant’s motion to dismiss Plaintiff’s Intentional Infliction of Emotional Distress claim is granted. The foregoing constitutes the decision and Order of this Court. Dated: August 5, 2019
