Recitation, as required by CPLR §2219 (a), of the electronic papers considered in the review of the Motion of Defendants City of New York, Annette Hill, and Anthony Tse for an Order, pursuant to CPLR §3211 (a) (7), dismissing the Amended Complaint of Plaintiffs Sakina McIntosh and Grace Perry: Papers NYSCEF Doc. No. Notice of Motion 18 Memorandum of Law in Support 19 Affirmation in Opposition 22 Affidavit in Opposition of Plaintiff Sakina McIntosh 23 Reply Memorandum of Law 24 Defendants’ Post-Argument Letter Submission with Exhibits 25-30 Plaintiffs’ Post-Argument Submission of Exhibits 31-33 DECISION/ORDER Upon the foregoing cited papers and oral argument heard on April 19, 2023, Defendants City of New York (“City”), Annette Hill, and Anthony Tse (collectively with the City, “Defendants”)1 move, pre-answer, for an Order, pursuant to CPLR §3211 (a) (7), dismissing this Action as against them. As explained below, the Motion is GRANTED, this Action is DISMISSED as against Defendants. The remainder of this Action as against the “John and Jane Does 1-10″ Defendants is DISMISSED pursuant to CPLR §1024. Factual History and Procedural Posture: In or about January 2019, the Office of the Parking Summons Advocate (“OPSA”) was created as a unit of the City’s Department of Finance (“DOF”).2 The mission of the OPSA is to “independently assist unrepresented and underrepresented members of the public with parking and camera violation issues and complaints that cannot be resolved through normal [DOF] channels.”3 The OPSA unit is encompassed within the DOF’s division of Land Records and Lien Enforcement (“Land Records Division”).4 Between January 7, 2019 and mid-March 2020, the OPSA was staffed by four individuals: (1) nonparty Jean Wesh (“Wesh”), a male, as Executive Agency Counsel (with the in-house title of Parking Summons Advocate); (2) plaintiff Sakina McIntosh (“McIntosh”), a female, as Agency Attorney, Level II; (3) coplaintiff Grace Perry (“Perry”), a female, as a case advocate or community coordinator; and (4) defendant Anthony Tse (“Tse”), a male, as the other case advocate or community coordinator in the OPSA.5 McIntosh’s Grievance with Her Union: On or about March 16, 2020, Wesh quit the position of Executive Agency Counsel, leaving McIntosh as the only staff attorney with the OPSA.6 With Wesh’s departure, McIntosh (then supervised by the DOF’s Chief of Staff7) “assumed his responsibilities and her duties increased greatly” in particular with the onset of the coronavirus pandemic (as more fully set forth in the margin8), pending the hiring of Wesh’s successor. Although the DOF initially sought to hire a replacement Executive Agency Counsel to fill out the vacancy left by Wesh’s departure,9 the DOF ultimately determined to redistribute his duties.10 In mid-October 2020, the DOF hired defendant Annette Hill (“Hill”), a female non-attorney, as Associate Commissioner/City Register of the Land Records Division to supervise the OPSA.11 At a meeting with Hill held in the later part of October 2020, McIntosh “pointed out to Hill that…there had been no problems with compensating Wesh when he performed the duties of the Public Advocate, and that McIntosh’s gender must be a reason the DOF was not adequately compensating her.”12 In addition, McIntosh took offense to the fact that Hill was not a lawyer. More specifically, “McIntosh…pointed out [at her meeting with Hill] that [there were some] ethical issues with her professional judgment being directed by a Parking Advocate that is a non-lawyer.”13 On October 26, 2020, McIntosh filed a Step I grievance with her union for the out-of-title (or out-of-level) work which she, as Agency Attorney Level II, allegedly had been performing at Agency Attorney Level III since Wesh’s departure on March 16, 2020.14 In particular, McIntosh complained to her union that: “I was admitted to the New York State Bar on April 27, 2011. I was appointed to the civil service title of [Agency] Attorney Level II on January 7, 2019. I have performed the duties of Agency Attorney Level III for agency since March 16, 2020. I am assigned the duties of Agency Attorney III[,] in that I work under direction with wide latitude for independent judgement and unreviewed action and decision, supervis[e] staff and engag[e] in important legal activity involving difficult complex legal work having significant legal and policy implications for the City[,] including…performing my Attorney Level II role combined with the role and all responsibilities of Executive Agency Counsel, which falls within the scope of the job specifications for Agency Attorney Level III. I was entitled to promotion to Agency Attorney Level III on March 16, 2020, the date I was assigned the work of an Agency Attorney III. I demand that my promotion to Agency Attorney Level III be made retroactive to that date and/or that I be forthwith paid the salary of an Agency Attorney Level III from that date forward to the present, plus interest.”15 Nothing in McIntosh’s union grievance suggested that she was being discriminated against based on her gender. McIntosh’s union grievance was denied at each of the three levels of administrative review — Steps I, II, and III.16 At the (final) Step III review level — that was conducted by the City’s Office of Labor Relations and concluded by denial, dated July 2, 2021 — the Review Officer ruled that: “[McIntosh failed to] demonstrate that her duties and responsibilities are substantially different from those set forth in the job specification for her title [as Agency Attorney Level II]. It is evident that the volume of [McIntosh's] work increased upon the departure of her former supervisor, Mr. Wesh. Likewise, it is clear that the manner in which [McIntosh's] duties were performed changed with the onset of coronavirus pandemic. However, neither of these factors resulted in a substantial change in the nature of [McIntosh's] overall responsibilities. Likewise, the fact that [McIntosh's] work is often unreviewed and performed independently falls squarely within the specification for Agency Attorney, Level II.”17 Approximately two months later, on September 18, 2021, McIntosh quit her job with the OPSA.18 Perry’s Complaint to DOF’s EEO Office: At the time of Hill’s arrival at the OPSA in mid-October 2020, Perry was one of its two case advocates (or community coordinators). Between December 2020 and July 2021, Hill allegedly engaged in a series of aggressive, hostile, and angry verbal confrontations with Perry on the principal subjects of: (1) Perry’s refusal to discuss McIntosh with Hill outside McIntosh’s presence; (2) Hill’s asking Perry — “blatantly” and “aggressively” — whether she was scared of Hill; (3) Hill’s scolding Perry for the latter’s intermittent difficulties in accessing the daily health survey via intranet; (4) Hill’s unresponsiveness to Perry’s email requests for permission to take off days for medical appointments; and (5) Hill’s unsubstantiated complaints to Perry about the latter’s alleged failure to wear a face mask during her meetings with consumers.19 On August 9, 2021, Perry lodged a gender discrimination and unlawful retaliation complaint with the DOF’s EEO office.20 By letter, dated November 28, 2022, the DOF’s EEO office denied Perry’s complaint, concluding that that “[t]he stated allegations [did] not demonstrate that [Perry was] subjected to any adverse employment related treatment or actions based on any protected category or activity covered under the [C]ity’s Equal Employment Opportunity policy or related New York City Human Rights Law.”21 The Instant Action: On February 24, 2022 (or while Perry’s complaint was then pending with the DOF’s EEO office), Plaintiffs commenced the instant action by filing and serving what eventually became the Amended Complaint.22 Plaintiffs assert in the Amended Complaint ten causes of action falling into six categories: (1) gender discrimination as to both Plaintiffs and against Defendants under the New York State Human Rights Law (Executive Law §296, et seq.) (“NYSHRL”) and the New York City Human Rights Law (“NYCHRL”) (Administrative Code of City of New York §8-107) (first and fifth causes of action, respectively) (collectively, the “gender discrimination claim”); (2) unlawful retaliation as to McIntosh and against Defendants under the NYSHRL and NYCHRL (second and sixth causes of action, respectively) (collectively, the “unlawful retaliation claim”); (3) hostile work environment as to both Plaintiffs and against Defendants under the NYSHRL and NYCHRL (third and seventh causes of action, respectively) (collectively, the “hostile work environment claim”); (4) severe emotional distress (both intentional and negligent in nature) as to both Plaintiffs and against Defendants under the NYSHRL and NYCHRL (fourth and eighth causes of action, respectively) (collectively, the “emotional distress claim”); (5) violation of Labor Law §198-a (1) as to both Plaintiffs and against Defendants (ninth cause of action) (the “Labor Law claim”); and (6) aiding and abetting as to both Plaintiffs and against Tse under the NYCHRL (tenth and final cause of action) (the “aiding and abetting claim”). In lieu of an answer, Defendants have moved, pre-answer, to dismiss the Amended Complaint for failure to state a cause of action under CPLR §3211 (a) (7). On April 19, 2023, the Court heard oral argument. On June 22, 2023, the Court received supplemental submissions from each side. Standard of Review: In considering a motion to dismiss pursuant to CPLR §3211 (a) (7), the court should “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v. Martinez, 84 NY2d 83, 87-88 [1994]). “Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss” (EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]). “Unlike on a motion for summary judgment where the court searches the record and assesses the sufficiency of the parties’ evidence, on a motion to dismiss the court merely examines the adequacy of the pleadings” (Davis v. Boeheim, 24 NY3d 262, 268 [2014] [internal quotation marks omitted]). Nonetheless, “[c]onclusory allegations or bare legal assertions with no factual specificity are not sufficient, and will not survive a motion to dismiss” (Polite v. Marquis Marriot Hotel, 195 AD3d 965, 967 [2d Dept 2021] [internal quotation marks omitted]). Moreover, “[w]hen evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one” (Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977]). Applying these principles here, the Court will examine each of the ten causes of action asserted against Defendants in the Amended Complaint (as amplified by McIntosh’s Affidavit in Opposition, dated February 27, 2023 at NYSCEF Doc. No. 23, and her out-of-title union grievance, and as further amplified by Perry’s complaint to the DOF’s EEO office) (collectively, the “Amplified Amended Complaint”). Discussion: Claims for Gender Discrimination,Hostile Work Environment, and Unlawful Retaliation Against Defendants The NYSHRL and NYCHRL each prohibit discrimination in employment, including subjecting an employee to a hostile work environment, in each instance, on the basis of gender (see Executive Law §296 [1] [a]; Administrative Code of City of NY §8-107 [1] [a]). Moreover, under both the NYSHRL and NYCHRL, it is unlawful to retaliate against an employee for opposing discriminatory practices (see Executive Law §296 [1] [e], [7]; Administrative Code of City of NY §8-107 [7]). Here, accepting as true the facts alleged in the Amplified Amended Complaint, and according Plaintiffs the benefit of every favorable inference, the Amplified Amended Complaint fails to state causes of action to recover damages for gender discrimination, hostile work environment, and unlawful retaliation as to either Plaintiff under the NYSHRL and NYCHRL (see Polite v. Marquis Marriot Hotel, 195 AD3d 965, 967 [2d Dept 2021]). “[T]he broader purposes of the [NYSHRL and NYCHRL] do not connote an intention that the law operate as a general civility code” (Williams v. New York City Hous. Auth., 61 AD3d 62, 79 [1st Dept 2009] internal quotation marks omitted], lv denied 13 NY3d 702 [2009]). Significant harms must be distinguished from ordinary tribulations of the workplace. Rude treatment by coworkers, callous behavior and harsh criticisms by one’s superiors, or differences of opinion and personality conflicts with one’s supervisor, are not actionable as either discriminatory, retaliatory, or impermissibly hostile under either the NYSHRL or NYCHRL, in the absence (as relevant here) of the underlying gender-based motives. As an initial matter, the Amplified Amended Complaint fails to allege circumstances giving rise to an inference of gender-based, or gender-motivated discrimination as against either Plaintiff (see Ayers v. Bloomberg, L.P., 203 AD3d 872, 874 [2d Dept 2022]). Further, none of the alleged conduct on Defendants’ part subjected either Plaintiff to: (1) the inferior terms, conditions or privileges of employment because of her gender under the NYSHRL (see Executive Law §296 [1] [h] [effective October 11, 2019]); or (2) an unfavorable change or a less-well treatment than other employees on the basis of her gender under the NYCHRL, sufficient to support either Plaintiff’s hostile work environment claim (see Pelepelin v. City of New York, 189 AD3d 450, 451 [1st Dept 2020]; Llanos v. City of New York, 129 AD3d 620 [1st Dept 2015]). Lastly, McIntosh’s unlawful retaliation claim23 fails to state a cause of action because she was not engaged in a “protected activity”; in other words, her out-of-title (or out-of-level) grievance with her union did not oppose or complain about unlawful discrimination (see Brunache v. MV Transp., Inc., 151 AD3d 1011, 1014 [2d Dept 2017]; Clarson v. City of Long Beach, 132 AD3d 799, 800 [2d Dept 2015]). Claim of Emotional Distress Against Defendants Plaintiffs have abandoned their emotional distress claim, by failing to address it in their opposition papers (see Genovese v. Gambino, 309 AD2d 832, 833 [2d Dept 2003]). Were the Court to consider the emotional distress claim, the Court would find that it is not viable. Neither the elements of the intentional nor of the negligent infliction of emotional distress are adequately alleged in the Amplified Amended Complaint. Indeed, the Amplified Amended Complaint falls far short of alleging the elements of intentional infliction of emotional distress which “are (1) extreme and outrageous conduct; (2) the intent to cause, or the disregard of a substantial likelihood of causing, severe emotional distress; (3) causation; and (4) severe emotional distress” (Klein v. Metro. Child Services, Inc., 100 AD3d 708, 710 [2d Dept 2012]). Likewise, the Amplified Alleged Complaint fails to allege “a breach of a duty owed to him [or her] which unreasonably endangered his [or her] physical safety, or caused him [or her] to fear for his [or her] own safety” (Sacino v. Warwick Val. Cent. School Dist., 138 AD3d 717, 719 [2d Dept 2016]). Claim of Labor Law Violation Against Defendants Likewise, Plaintiffs have abandoned their Labor Law claim, by failing to address it in their opposition papers (see Genovese, 309 AD2d at 833). Were the Court to consider the Labor Law claim, the Court would also find that it is not viable. Labor Law §198-(a) (1) provides for penal sanctions against officers and agents of corporations (see Renzler v. D.F. White, Inc., 267 AD2d 443, 444 [2d Dept 1999] ["The Legislature clearly intended that corporate officers not be subjected to civil liability under that article of the Labor Law."] [emphasis added]). Further, the definition of “employer,” applicable to Labor Law §198-a-(1), excludes governmental entities, such as the City (see Labor Law §190 [3]; Mancuso v. Crew, 255 AD2d 295, 296 [2d Dept 1998]). Lastly, the definition of “employee,” likewise applicable to Labor Law §198-a (1), includes “any person employed for hire by an employer in any employment,” such as defendant Tse (see Labor Law §190 [2]). Accordingly, the complained-of conduct, as alleged in the Amplified Amended Complaint, does not fall within the narrow scope of Labor Law §198-(a) (1). Claim of Aiding and Abetting Against Defendant Tse Lastly, the NYSHRL and NYCHRL impose liability on individuals who aid and abet an employer which commits employment discrimination (see Executive Law §296 [6]; Administrative Code of City of NY §8-107 [1] [a]). Nevertheless, an individual cannot aid and abet his or her own violation of the NYSHRL or NYCHRL (see Strauss v. New York State Dept. of Educ., 26 AD3d 67, 73 [2d Dept 2005]). Since it is alleged that Defendant Tse’s own actions gave rise to the discrimination claim, he cannot concurrently be held liable for aiding and abetting it (see Hardwick v. Auriemma, 116 AD3d 465, 468 [1st Dept 2014], lv denied 23 NY3d 908 [2014]). Claims against John and Jane Doe 1-10 One final but important point concerns the unnamed “John and Jane Doe 1-10″ Defendants. CPLR §1024 permits “[a] party who is ignorant, in whole or in part, of the name or identity of a person who may properly be made a party” to “proceed against such person as an unknown party by designating so much of his [or her] name and identity as is known. If the name or remainder of the name becomes known all subsequent proceedings shall be taken under the true name and all prior proceedings shall be deemed amended accordingly.” As the Second Judicial Department explained, “[t]he use of CPLR [§]1024 presents many pitfalls” (Bumpus v. New York City Tr. Auth., 66 AD3d 26, 29 [2d Dept 2009]). “One pitfall is that parties are not to resort to the ['John Doe' or] ‘Jane Doe’ procedure unless they exercise due diligence, prior to the running of the statute of limitations, to identify the defendant by name and, despite such efforts, are unable to do so” (Bumpus, 66 AD3d at 29-30). “Any failure to exercise due diligence to ascertain the ['John Doe's or] ‘Jane Doe’s’ name subjects the complaint to dismissal as to that party” (id. at 30). Another (but equally important) “requirement unique to CPLR [§] 1024 is that the ['John Doe' or] ‘Jane Doe’ party be described in such form as will fairly apprise the party that [he or] she is the intended defendant” (id., 66 AD3d at 30). “An insufficient description subjects the ['John Doe' or] ‘Jane Doe’ complaint to dismissal for being jurisdictionally defective” (id.). Here, plaintiffs have failed to describe any due diligence undertaken to learn of the persons’ identities before naming them as “John and Jane Doe 1-10″ Defendants. Accordingly, the misuse of CPLR §1024 results in dismissal as against the “John and Jane Doe 1-10″ Defendants (see Bumpus, 66 AD3d at 30-31). Conclusion: Upon the filing and reading of the Amplified Amended Complaint, the Motion, and the parties’ respective submissions in support and opposition thereto, and upon the oral argument held on April 19, 2023, the Court grants the Motion and dismisses this Action as against each of the City of New York, Annette Hill, and Anthony Tse, as well as against the “John and Jane Doe 1-10″ Defendants, with prejudice. The foregoing constitutes the Decision, Order, and Judgment of this Court. Dated: July 10, 2023
