Ruggerio v. Dynamic Eletric System Inc. et al, No. 1:2012cv00100 - Document 20 (E.D.N.Y. 2012)
Court Description: ORDER granting in part and denying in part 7 Motion to Dismiss for Lack of Jurisdiction; granting in part and denying in part 16 Motion to Dismiss. Ordered by Judge I. Leo Glasser on 7/25/2012. (Green, Dana)
Download PDF
<![CDATA[
Ruggerio v. Dynamic Eletric System Inc. et al Doc. 20 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------x J O-ANNE RUGGERIO, Plaintiff, Mem orandum an d Order 12 Civ. 10 0 - against - DYNAMIC ELECTRIC SYSTEM INC.. ANZELM KRYSA, J IM ROSTKOWSKI, and CARL BALZOFIORE, Defendants. ------------------------------------------------------x GLASSER, United States District J udge: Plaintiff, J o-Anne Ruggerio (“Ruggerio” or “plaintiff”), com m enced this action against defendants Dynam ic Electric System Inc. (“Dynam ic”), Anzelm Krysa (“Krysa”), J im Rostkowski (“Rostkowski”), and Carl Balzofiore (“Balzofiore”), alleging sexual harassm ent and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 20 0 0 e et seq., The New York State Hum an Rights Law (“NYSHRL”), N.Y. Exec. Law § 296, et seq. (McKinney 20 10 ), and the New York City Hum an Rights Law (“NYCHRL”), N.Y.C. Adm in. Code § 8 -10 1. On February 7, 20 12, Dynam ic an d Krysa (the “Dynam ic defendants”) m oved to dism iss the Com plaint for failure to state a claim , pursuant to Federal Rule of Civil Procedure 12(b)(6). 1 In the alternative, the 1 The Dynam ic defendants do not specify which provision of Rule 12(b) is grounds for their m otion. Although docketed as a “Motion to Dismiss for Lack of J urisdiction,” presum ably pursuant to Rule 12(b)(1), the Court reads the Dynam ic defendants’ m emorandum of law as arguing plaintiff fails to state a federal claim upon which relief can be granted, pursuant to Rule 12(b)(6) and that, because plaintiff has failed to state a federal claim , the Court lacks pendent jurisdiction over plaintiff’s state law claims. This also appears to be plaintiff’s understanding of the m otion. See Plaintiff’s Mem orandum of Law in Opposition to the Dynam ic Defendants’ 1 Dockets.Justia.com Dynam ic defendants argue that sum m ary judgm ent should be granted pursuant to Federal Rule of Civil Procedure 12(d) because plaintiff executed a waiver and release of her claim s. On March 2, 20 12, defendant Rostkowski also m oved to dism iss the Com plaint pursuant to Rule 12(b)(6) or, in the alternative, for sum m ary judgm ent pursuant to Rule 12(d). Balzofiore has not m ade a m otion. For the following reasons, the m otions are granted in part and denied in part. BACKGROU N D The following facts are undisputed, unless otherwise noted. Dynam ic is an electrical contracting and engin eering com pany located in Brooklyn, New York. Com pl. ¶ 7. Plaintiff alleges that Dynam ic owns and operates a num ber of subsidiaries, including Dynam ic Energy Group, Inc. (“DEGI”) and Dynam ic Mechanical. Id. ¶ 9. Kryza is the Chairm an of Dynam ic, Rostkowski is the Vice President of DEGI, and Balzofiore is the owner or officer of Dynam ic Mechanical. Id. ¶¶ 10 -12 Plaintiff alleges that these corporations operated as a single en terprise. Id. ¶ 13. Plaintiff was hired on August 4, 20 0 8 as a Field Adm inistrator with Dynam ic Electric System , Inc. Id. ¶¶ 16-18. In that capacity, she was assigned to a work site in Staten Island, where defendants were constructing the Charleston Bus Depot for the New York City Transit Authority. Id. ¶ 19. Plaintiff alleges she was subjected to daily sexual harassm ent and discrim ination at that site, including: being called derogatory sexual nam es, such as “bitch” or “cunt”; being told to perform sexual acts, such as “suck dick” or “strap on a dildo”; and receiving “Post-it” notes on her com puter with obscene Motion for Sum m ary J udgm ent (“Pl.’s 1st Mem .”) (Dkt. No. 11-6) at 4-6 (arguing plaintiff has m et the pleading standard relevant to a 12(b)(6) m otion). 2 and threatening anonym ous m essages. 2 Id. ¶ 20 . She alleges m an y of these acts were witnessed by m anagerial staff and supervisors, who took no action or who teased her about having a “secret adm irer.” Id. ¶ 22. She also m ade verbal com plaints to Rostkowski and Balzofiore, who took no action. Id. ¶¶ 21-22. In Septem ber, 20 0 9, Ruggerio filed a grievance with her union, the International Brotherhood of Electrical Workers (“IBEW”), but the harassm ent continued. Com pl. ¶¶ 24-25. In J anuary 20 10 , defen dants term in ated Ms. Ruggerio’s em ploym ent, citing a lack of work. Com pl. ¶ 26. Approxim ately one year later, in J anuary 20 11, plaintiff continued to pursue her grievance with the IBEW. See Com pl. ¶ 28; Declaration of Kelly C. Spina dated Mar. 2, 20 12 (“Spina Decl.”) Ex. A (Plaintiff’s EEOC charge, declaring, under penalty of perjury, that plaintiff m ade written and verbal com plaints to the IBEW in J anuary 20 11 regarding the sexual harassm ent she had suffered). Plaintiff alleges that in response to her ongoing com plaints, defendants retaliated against her in J anuary 20 11 by “respon[ding] to telephone inquiries for an em ploym ent reference for m e . . . [with] false and derogatory statem ents that I was fired because I was ‘blowing the guys on the job site.’” See Affidavit of Plaintiff dated February 21, 20 12 (“Pl.’s 1st Aff.”) (Dkt. No. 11-1), ¶ 7; see also Com pl. ¶ 28 . Beginning in J anuary 20 11, the parties sought to settle plaintiff’s claim s. By a letter dated J anuary 12, 20 11, the IBEW sent Dynam ic a settlem ent offer, signed by the plaintiff. See Affidavit of Anzelm Krysa dated Feb. 7, 20 12 (“Krysa Aff.”), Ex. A (Letter 2 Plaintiff alleges the m essages included statem ents such as: “I want you to lick m y balls;” “I want to suck your pussy;” “Do you have blond hair on your cunt or do you shave it;” “I want to pull on your braids while you blow m e;” “I wanna fuck you so bad m y balls hurt;” and “Do you like anal sex?” Com pl. ¶ 20 (b). 3 to Krysa dated J anuary 12, 20 11). This offer was never accepted by Dynam ic. See id; Pl.’s 1st Aff. ¶ 10 . By a letter dated February 18, 20 11, Krysa, acting on behalf of Dynam ic, sent plaintiff a Letter Agreem ent and Release. See Krysa Aff. Ex. B (the “Letter Agreem ent”) & C (“the Release”). The Letter Agreem ent stated “you are eligible to receive the severance ben efits described in this letter (“Letter Agreem ent”) if you will sign and return the Letter Agreem ent and Attachm ent A (“Release”) to m e by March 19, 20 11 and do not revoke your acceptance.” Id. Ex. C (em phasis in original). Plaintiff signed the Release on April 6, 20 11, m ore than two weeks after the March 19, 20 11 deadline. Id. Ex. C; Pl.’s Rule 56.1 Statem ent ¶ 4. Plaintiff never signed the Letter Agreem ent. The Release stated, in relevant part: In consideration of the Severance Pay and the loan forgiveness described in the Letter Agreem ent, which you acknowledge you would not otherwise be entitled to receive, you hereby fully, forever, irrevocably an d unconditionally release, rem ise an d discharge the Com pany, and all of the following: its officers, directors, stockholders, corporate affiliates, subsidiaries, parent com panies, agents and em ployees (each in their individual and corporate capacities) . . . (hereinafter the “Released Parties”) from any and all claim s, grievances, charges, com plaints, dem ands, actions, causes of action, suits, rights . . . of every kind and nature that you ever had or now have against the Released Parties, including but not lim ited to, any and all claim s arising out of or relating to your em ploym ent with and/ or separation from the Com pany, including, but not lim ited to, all claim s under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 20 0 0 e et seq. . . . all claim s under the New York Human Rights Law, N.Y. Exec. Law Sec. 290 et seq., . . . and any claim or dam age arising out of your em ploym ent with and/ or separation from the Com pany (including a claim for retaliation) under any com m on law theory or any federal, state or local statute or ordinance not expressly referenced above. 4 Id. In exchange for the release of her claim s, Dynam ic com m itted to: (1) pay Ruggerio “the sum of $ 3,120 .0 0 less all applicable taxes and withholdings”; an d (2) forgive “the $ 3,0 0 0 personal loan that you have taken from the Com pany, 3 which as of February 18, 20 11 has the outstanding balance in the am ount of . . . $ 2,10 0 .0 0 .” Id. Ex. B, ¶ 3 (em phasis in original). Plaintiff alleges that defendants did not forgive her loan or m ake the prom ised severance paym ent. See Pl.’s 1st Aff, ¶ 14. By a letter dated J une 13, 20 11, plaintiff wrote to the Dynm aic defendants, stating that she did not consider the Letter Agreem ent an d Release binding. See Declaration of Alan Serrins dated February 21, 20 12 (“Serrins Decl.”) Ex. 3. By a letter dated J uly 11, 20 11, Dynam ic m ailed a check for $ 1,876.64 to plaintiff. See Krysa Aff. Ex. E; Plaintiff’s Statem ent Pursuant to Rule 56.1 (“Pl.’s R. 56.1”) ¶ 11. The Dynam ic defendants allege this am ount represented $ 3,120 .0 0 , less applicable tax withholdings, as prom ised in the Letter Agreem ent. Dynam ic Defendants’ Statem ent of Material Facts (“Dynam ic R. 56.1”) ¶ 11. By an em ail dated J uly 15, 20 11, plaintiff rejected the check, reiterating to the Dynam ic defendants that she considered the Release “null and void.” Serrins Decl. Ex. 4. On Septem ber 22, 20 11, plaintiff filed a com plaint with the Equal Em ploym ent Opportunity Com m ission (“EEOC”). See Krysa Aff. Ex. F. On Novem ber 23, 20 11, the EEOC issued plaintiff a “right to sue” letter. Com pl. ¶ 3. On J anuary 9, 20 12, plaintiff filed her Com plaint. 3 During plaintiff’s em ploym ent, on November 25, 20 0 9, she received a personal loan from Dynam ic for $ 3,0 0 0 and authorized Dynam ic to withhold $150 .0 0 per week from her paycheck until the money was repayed. See Krysa Aff. Ex. D. 5 JU RISD ICTION This Court has origin al jurisdiction over plain tiff's Title VII claim s. The Court also has supplem ental jurisdiction over plaintiff’s state law claim s. Federal courts have supplem ental jurisdiction over “all other claim s that are so related to claim s in the action within such original jurisdiction that they form part of the sam e case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). A state law claim form s part of the sam e controversy if the state and federal claim “derive from a com m on nucleus of operative fact.” United Mine Workers v. Gibbs, 383 U.S. 715, 725, 8 6 S. Ct. 1130 , 16 L. Ed. 2d 218 (1966). Here, the parties and alleged events and injuries that are grounds for plaintiff’s federal claim s are identical to those of plaintiff’s state law claim s. D ISCU SSION I. Stan d ard o f Re vie w Defendants seek dism issal under Rule 12(b)(6) or, in the alternative, sum m ary judgm ent pursuant to Rule 12(d). If, on a Rule 12(b)(6) m otion, “m atters outside the pleadings are presented to and not excluded by the court, the m otion shall be treated as one for sum m ary judgm ent and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all m aterial m ade pertinent to such a m otion by Rule 56.” Fed. R. Civ. P. 12(d). As indicated by the word ‘m ust,’ “the conversion of a Rule 12(b)(6) m otion into one for sum m ary judgm ent under Rule 56 when the court considers m atters outside the pleadings is ‘strictly enforce[d]’ and ‘m andatory.’” Global Network Com m c’ns, Inc. v. City of New York, 458 F.3d 150 , 155 (2d Cir. 20 0 6) (quoting Am aker v. Weiner, 179 F.3d 48, 50 (2d Cir. 1999); Goldm an v. Belden, 754 F.2d 10 59, 10 66 (2d Cir. 1985)). However, a district court m ay also, at its discretion, exclude the 6 extraneous m aterial and construe the m otion as one under Rule 12(b)(6). Friedl v. City of New York, 210 F.3d 79, 8 3 (2d Cir. 20 0 0 ). In m aking their m otions, defendants subm itted m aterial extraneous to the Com plaint—including, am ong other things, the Release. Although the Release is briefly referred to in the Com plaint, see Com pl. ¶ 28(a), “[a] m ere passing reference or even references . . . to a docum ent outside of the com plaint does not, on its own, incorporate the docum ent into the com plaint itself.” William s v. Tim e Warner Inc., 440 F. App’x 7, 9 (2d Cir. 20 11) (sum mary order) (citation om itted); see also Cham bers v. Tim e Warner, Inc., 282 F.3d 147, 153 (2d Cir. 20 0 2) (noting the com plaint m ust heavily rely upon the docum ent’s “‘term s and effect’” to be considered “‘integral’ to the com plaint” (quoting Int’l Audiotext Network, Inc. v. Am . Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995))). Consequently, the Dynam ic defendants concede that portion of their m otion relying upon the Release should be deem ed a m otion for sum m ary judgm ent. See Mem orandum of Law in Support of Defendants Dynam ic and Krysa’s Motion to Dism iss (“Dynam ic Mem .”) (Dkt. No. 7) at v n.1. The parties’ dispute is largely a m atter of contract interpretation and the Court is not persuaded that additional discovery would be relevant. Therefore, to the extent defendants’ m otions rely upon the release or other extraneous m aterial, the m otion will be converted to one for sum m ary judgm ent. Sum m ary judgm ent is appropriate “if the m ovant shows that there is no genuine dispute as to an y m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a). As an initial m atter, the m oving party has the burden of dem onstrating that no genuine dispute of m aterial fact exists for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 10 6 S. Ct. 1348, 8 9 L. Ed. 2d 538 7 (1986). “A party asserting that a fact cannot be or is genuinely disputed m ust support the assertion by: (A) citing to particular parts of m aterials in the record, including depositions, docum ents, electronically stored inform ation, affidavits or declarations, stipulations (including those m ade for purposes of the m otion only), adm issions, interrogatory answers, or other m aterials; or (B) showing that the m aterials cited do not establish the absen ce or presen ce of a genuine dispute, or that an adverse party cannot produce adm issible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). Once the m oving party has m et this burden, the opposing party “‘m ust do m ore than sim ply show that there is som e m etaphysical doubt as to the m aterial facts. . . . [T]he nonm oving party m ust com e forward with specific facts showing that there is a genuine issue for trial.’” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 20 0 2) (em phasis in original) (quoting Matsushita, 475 U.S. at 586-87). “If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court m ay . . . grant sum m ary judgm ent if the m otion and supporting m aterials—including the facts considered undisputed—show that the m ovant is entitled to it.” Fed. R. Civ. P. 56(e). The Court is com pelled to draw all reasonable inferences in favor of the nonm oving party, Matsushita, 475 U.S. at 586, and a genuine dispute exists if a reasonable jury could find in favor of the non-m oving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 10 6 S. Ct. 250 5, 2510 , 91 L. Ed. 2d 20 2 (1986). However, “[i]f the eviden ce is m erely colorable, or is not significantly probative, sum m ary judgm ent m ay be granted.” Anderson, 477 U.S. at 249– 50 (citations om itted). “[T]he m ere existen ce of som e alleged factual dispute between the parties” alone will not defeat 8 a properly supported m otion for sum m ary judgm ent. Id. at 247– 48 (em phasis in original). “Thus, the nonm oving party m ay n ot rest upon m ere conclusory allegations or denials but m ust set forth ‘concrete particulars’ showing that a trial is needed.” R.G. Grp., Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984) (quoting S.E.C. v. Res. Autom ation Corp., 585 F.2d 31, 33 (2d Cir. 1978)). II. Plain tiff’s Claim s Aga in s t th e In d ivid u al D e fe n d an ts A. Sum m ary J udgm ent is Granted as to Plaintiff’s Title VII Claim s Against the Individual Defen dants As an in itial m atter, defendants’ m otions for sum m ary judgm ent are granted as to plaintiff’s Title VII claim s against Krysa, Rostkowski, and Balzofiore. It is well-settled that individuals are not subject to liability under Title VII. See, e.g., Mandell v. Cnty. of Suffolk, 316 F.3d 368, 377 (2d Cir. 20 0 3) (affirm ing dism issal of Title VII claim s “because under Title VII individual supervisors are not subject to liability”) (citations om itted); Tom ka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998 ) (“[I]ndividual defendants with supervisory control over a plaintiff m ay not be held personally liable under Title VII.”). B. Rostkowski’s Motion for Sum m ary J udgm ent on Plaintiff’s NYSHRL and NYCHRL Claim s Must be Denied Defendant Rostkowski seeks sum m ary judgm ent on plaintiff’s NYSHRL and NYCHRL claim s, arguing that plaintiff has failed to adequately plead an “integrated enterprise theory” as against DEGI and therefore plaintiff has failed to state a claim against Rostkowski because he was Vice-President of DEGI and not plaintiff’s “em ployer”. Rostkowski Mem . at 9. In support, Rostkowski has subm itted an affidavit, 9 stating DEGI is a subcontractor of Dynam ic and neither he nor DEGI were involved in Dynam ic’s decision to hire or fire plaintiff. Affidavit of J am es Rostkowski dated February 29, 20 12 ¶¶ 3, 6. Unlike Title VII claim s, individuals m ay be held liable under the NYSHRL and the NYCHRL. See Feingold v. New York, 366 F.3d 138, 158 -58 (2d Cir. 20 0 4) (affirm ing individual defendants m ay be personally liable under the NYSHRL and NYCHRL). However, the NYSHRL and NYCHRL are not a “general civility code,” William s v. N.Y. City Housing Auth., 61 A.D.3d 62, 79, 8 72 N.Y.S.2d 27 (1st Dep’t 20 0 9), and claim s m ay only be brought against: (1) em ployers with an ownership interest or the power to m ake personnel decisions, Patrowich v. Chem ical Bank, 63 N.Y.2d 541, 542, 483 N.Y.S.2d 659 (198 4) (per curiam ); or (2) individuals who aid or abet the harassm ent, Feingold, 366 F.3d at 158 (citing Tom ka, 66 F.3d at 1295 see also N.Y. Exec. Law § 296(6) (“It shall be an unlawful discrim inatory practice for an y person to aid, abet, incite, com pel or coerce the doing of any of the acts forbidden under this article, or to attem pt to do so.”). “The sam e stan dards of analysis used to evaluate aiding an d abetting claim s under the NYSHRL apply to such claim s under the NYCHRL because the language of the two laws is ‘virtually identical.’” Feingold, 366 F.3d at 158 (quoting Dunson v. Tri-Maintenance & Contractors, Inc., 171 F. Supp. 2d 10 3, 113-14 (E.D.N.Y. 20 0 1) (citations om itted); see N.Y.C. Adm in. Code § 8 -10 7(6) (“Aiding and abetting. It shall be an unlawful discrim inatory practice for any person to aid, abet, incite, com pel or coerce the doing of any of the acts forbidden under this chapter, or to attem pt to do so.”). 4 4 With respect to aiding and abetting liability, the Court is m indful there are conflicting interpretations of § 296(6) am ong state and federal courts. See Patane v. Clark, 435 F. Supp. 2d 30 6, 312-13 (S.D.N.Y. 20 0 6), rev’d on other grounds, 508 F.3d 10 6 (2d Cir. 20 0 7) (collecting 10 Here, plaintiff alleges that Rostkowski personally participated in the conduct giving rise to plaintiff’ NYSHRL and NYCHRL hostile work environm ent claim s. Plaintiff alleges Rostkowski was aware of an d witnessed the harassing conduct, that she m ade com plaints to him but he took no action, and in response to the sexually threatening m essages on her com puter, he teased her that she had a “secret adm irer.” See Com pl. ¶¶ 21-22. Plaintiff also subm itted an affidavit stating Rostkowski participated in the harassm ent by m aking “derogatory statem ents offensive to wom en in m y presence, such as a com m ent relating to the use of a ‘dildo’.” Pl.’s Aff. ¶ 5. Plaintiff has sufficiently dem onstrated m aterial issues of fact exist as to whether Rostkowski aided and abetted the sexual harassm ent, pursuant to § 296(6) and § 8-10 7(6), and Rostkowski’s m otion for sum m ary judgm ent m ust be denied as to plaintiff’s NYSHRL and NYCHRL claim s. III. Plain tiff’s Title VII Claim s again s t D yn am ic Regarding plaintiff’s Title VII claim s against Dynam ic, defen dants argue these claim s are barred by the statute of lim itations. As a precondition to filing a Title VII claim in federal court, a plaintiff m ust first exhaust her adm inistrative rem edies by filing a com plaint with the EEOC within 30 0 days of the alleged discrim inatory act, obtaining a right to sue letter, and filing an action within 90 days of receipt of that letter. See 42 U.S.C. § 20 0 0 e– 5(e)– (f); Deravin v. Kerik, 335 F.3d 195, 20 0 (2d Cir. 20 0 3) (“As a precondition to filing a Title VII claim in federal court, a plaintiff m ust first pursue cases, including divergent decisions by the New York Appellate Division First and Second Departm ents). Nevertheless, the m ajority of federal district courts in New York have followed the Second Circuit’s decision in Tom ka, interpreting § 296(6) to hold individuals personally liable for discrim inatory conduct and “until the Second Circuit revisits the issue, Tom ka is the law in this circuit.” Tully– Boone v. North Shore– Long Island J ewish Hosp. Sys., 588 F.Supp.2d 419, 426– 427 (E.D.N.Y. 20 0 8); see also Feingold, 366 F.3d at 161 (recognizing disagreem ent in state courts but adhering to Tom ka). 11 available adm inistrative rem edies and file a tim ely com plaint with the EEOC.”). “This statutory requirem ent effectively acts as a statute of lim itations, and Title VII claim s are barred by the failure to file a tim ely charge.” Hill v. Citibank Corp., 312 F. Supp. 2d 464, 472 (S.D.N.Y. 20 0 4) (citing Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 70 8, 712 (2d Cir. 1996)). Plaintiff filed her com plaint with the EEOC on Septem ber 22, 20 11, which is m ore than 30 0 days after she was term inated, in J anuary 20 10 . Nevertheless, plaintiff argues that her claim s are tim ely because a discrim inatory act occurred within the statute of lim itations. This act was, apparently, the negative em ploym ent reference in J anuary 20 11 (the “J anuary 20 11 reference”), in which an unnam ed Dynam ic em ployee responded to a telephone inquiry by stating that plaintiff had been fired because she was “blowing the guys on the job site.” Declaration of Ann Macadangdang dated March 15, 20 12, Ex. 1, ¶ 8 ; Plaintiff’s Mem orandum of Law in Opposition to Rostkowski’s Motion to Dism iss (“Pl.’s 2d Mem .”) at 12. In her Com plaint, plaintiff characterized the J anuary 20 11 referen ce as an act of retaliation. See Com pl. ¶ 28. Plain tiff now argues it was also a continuation of the sexual harassm ent she suffered on the job and therefore her hostile work environm ent claim is tim ely. The Court considers each argum ent in turn. A. Plaintiff’s Title VII Retaliation Claim is Tim ely Plaintiff alleges that in response to her com plaints to the IBEW after her term ination, defendants “subjected plaintiff to additional retaliatory treatm ent,” including “blacklisting” her from the industry and the J anuary 20 11 reference. Com pl. ¶ 28 . These acts occurred within the statute of lim itations and plaintiff included these allegations in her tim ely EEOC charge. See Spina Decl. Ex. A. It is well-established that 12 providing a n egative job reference for a form er em ployee can constitute unlawful retaliation under Title VII. See Robinson v. Shell Oil Co., 519 U.S. 337, 117 S. Ct. 843, 136 L. Ed. 2d 80 8 (1997) (holding that a negative em ploym ent reference can constitute retaliation); J ute v. Ham ilton Sundstrand Corp., 420 F.3d 166 (2d Cir. 20 0 5) (giving negative referen ces in retaliation for protected activity considered retaliation in violation of Title VII). For these reasons, plaintiff’s Title VII retaliation claim is tim ely and sum m ary judgm ent on that ground is denied. B. Plaintiff’s Title VII Hostile Work Environm ent Claim is Untim ely Plaintiff also argues that her hostile work environm ent claim is tim ely because the J anuary 20 11 reference was sufficiently sexually offensive as to constitute a continuation of the sexual harassm ent she experienced while she was em ployed. See Pl.’s 2d Mem . at 12. “[I]n hostile work environm ent cases, an offensive incident within the [30 0 day] lim itations period perm its consideration of an inciden t preceding [that] period . . . if the incidents are sufficiently related.” McGullam v. Cedar Graphics, Inc., 60 9 F.3d 70 , 77 (2d Cir. 20 10 ) (internal quotation om itted). [i]t does not m atter, for purposes of the statute, that som e of the com ponent acts of the hostile work environm ent fall outside the statutory tim e period. Provided that an act contributing to the claim occurs within the filing period, the entire tim e period of the hostile environm ent m ay be considered by a court for the purposes of determ ining liability. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 10 1, 117, 112 S. Ct. 20 61, 153 L. Ed. 2d 10 6 (20 0 2). This requires an “individualized assessm ent of whether incidents an d episodes are related.” McGullam , 60 9 F.3d at 77. Factors m ay include the n ature, frequency, and severity of the acts, the length of tim e elapsed between the tim ely an d 13 untim ely acts, and whether it was the sam e harasser who com m itted the acts. Id. at 7778 . Here, plaintiff’s untimely allegations are that between 20 0 8-20 10 she suffered daily verbal and written harassm ent at her work site, including being called derogatory and obscene nam es, being asked to perform sexual acts, and receiving obscene and threatening notes describing sex acts. See Com pl. ¶ 20 . The Court assum es, without having to decide, that the alleged 20 0 8-20 10 harassm ent would constitute a hostile work environm ent. The nature of that anonym ous and obscene harassm ent is sim ilar to that of the J anuary 20 11 incident where an unnam ed Dynam ic em ployee responded to an em ploym ent verification request by claim ing, in dem eaning jargon, that plaintiff had been fired for perform ing fellatio at work. Had plaintiff still been an em ployee in 20 11, the J anuary 20 11 reference would constitute a continuation of the prior harassing conduct, perm itting the Court to consider the acts outside the statute of lim itations. However, plaintiff’s claim presents a novel question: whether harassm ent that occurred after the em ploym ent relationship ended can be considered a continuation of a hostile work environm ent. For the following reasons, the Court finds that it cannot, and the J anuary 20 11 incident is a discrete act, actionable as retaliation but with no bearing on the tim eliness of plaintiff’s hostile work environm ent claim . In considering this question, the Court looks, first, to the language of the statute. In Robinson, the Suprem e Court observed that the term “em ployee,” as it is defined by Title VII 5 is 5 “The term ‘em ployee’ m eans an individual em ployed by an em ployer. . . .” 42 U.S.C. § 20 0 0 e(f). The Court in Robinson stated that, “[a]t first blush, the term ‘em ployees’ . . . would seem to refer to those having an existing em ploym ent relationship with the em ployer in question.” Robinson, 519 U.S. at 341. However, the Court found that “[t]his initial impression . . 14 am biguous as to whether it includes both current and form er em ployees. The Court determ ined that Section 70 4(a) of the statute, which prohibits retaliation, clearly contem plated suits by form er em ployees. Id. at 345. However, the Court cautioned that in other clauses of the statute, the term “em ployee” m ight not include form er em ployees, id. at 344, and “each section m ust be analyzed to determ ine whether the context gives the term a further m eaning that would resolve the issue in dispute.” id. at 343-44. The Suprem e Court has em phasized that Title VII’s substantive provisions, prohibiting discrim ination and a hostile work environm ent, differ from the antiretaliation provision in im portant ways. See Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 240 5, 165 L. Ed. 2d 345 (20 0 6). Hostile work environm ent claim s are prem ised upon that portion of Title VII m aking it “an unlawful em ploym ent practice” for an em ployer: (1) to fail or refuse to hire or to discharge any individual, or otherwise to discrim inate against any individual with respect to his com pensation, term s, conditions, or privileges of em ploym ent, because of such individual's race, color, religion, sex, or national origin; or (2) to lim it, segregate, or classify his em ployees or applicants for em ploym ent in any way which would deprive or tend to deprive any individual of em ploym ent opportunities or otherwise adversely affect his status as an em ployee, because of such individual’s race, color, religion, sex, or national origin. 42 U.S.C. § 20 0 0 e-2(a) (em phasis added). The italicized words of the substantive provision “explicitly lim it the scope of that provision to actions that affect em ploym ent . does not withstand scrutiny” because “the word ‘em ployed’ . . . could just as easily be read to m ean ‘was em ployed.’” Id. at 341-42. 15 or alter the conditions of the workplace. No such lim iting words appear in the antiretaliation provision.” Burlington Northern, 548 U.S. at 62. There is strong reason to believe that Congress intended the differences that its language suggests, for the two provisions differ not only in language but in purpose as well. The antidiscrim in ation provision seeks a workplace where individuals are not discrim in ated again st because of their racial, ethnic, religious, or gender-based status. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 80 0 – 0 1, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). The antiretaliation provision seeks to secure that prim ary objective by preventing an em ployer from interfering (through retaliation) with an em ployee’s efforts to secure or advance enforcem ent of the Act’s basic guarantees. The substantive provision seeks to prevent injury to individuals based on who they are, i.e., their status. The antiretaliation provision seeks to prevent harm to individuals based on what they do, i.e., their conduct. Id. at 54. Reflecting that em phasis on status, every iteration of the elem ents of a hostile work environm ent claim has required an existing em ployer-em ployee relationship an d a showing that the harassm ent substantively affected the plaintiff’s working conditions. See, e.g., Meritor Sav. Bank, FAB v. Vinson, 447 U.S. 57, 63-67, 10 6 S. Ct. 2399, 91 L. Ed. 2d 49 (1986) (reviewing the adm inistrative an d judicial developm ent of hostile work environm ent claim s and noting “the EEOC drew upon a substantial body of judicial decisions and EEOC precedent holding that Title VII affords em ployees the right to work in an environm ent free from discrim in atory intim idation, ridicule, and in sult” (em phasis added)); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993) (“A hostile work environm ent claim requires a showin g that the workplace was perm eated with discrim in atory intim idation, ridicule, and in sult, that is sufficiently severe or pervasive to alter the conditions of the victim ’s em ploym ent.” (em phasis added)); Gorzynski v. J etBlue Airways Corp., 596 F.3d 93, 10 2 (2d Cir. 20 10 ) 16 (affirm ing a finding of a hostile work environm ent where the conduct was “sufficiently continuous and concerted to be deem ed pervasive and dam aging to [plaintiff’s] work environm ent.” (em phasis added)). In contrast, Title’s VII’s retaliation provision is m uch broader an d includes form er em ployees, Robinson, 519 U.S. at 346 (unjustified negative em ploym ent reference for form er em ployee could constitute retaliation); retaliatory acts outside the workplace, see, e.g., Berry v. Stevinson Chevrolet, 74 F.3d 980 (10 th Cir. 1996) (finding actionable retaliation where em ployer filed false crim inal charges against form er em ployee who com plained about discrim ination); and even retaliation by future or concurrent em ployers, see, e.g., McMenem y v. City of Rochester, 241 F.3d 279, 284 (2d Cir. 20 0 1) (“Title VII protects an em ployee from any em ployer, present or future, who retaliates against him because of his prior or ongoing opposition to an unlawful em ploym ent practice or participation in Title VII proceedings.”). Im plicit in the Court’s recognition of the broad scope of the antiretaliation provision is an acknowledgem ent that Title VII’s substantive provisions do not reach so far. See, e.g., Burlington Northern, 548 U.S. at 67 (“Title VII’s substantive provision and its antiretaliation provision are not coterm inous. The scope of the antiretaliation provision exten ds beyond workplace-related or em ploym ent-related retaliatory acts an d harm .”). The J anuary 20 11 reference had no effect upon plaintiff’s work environm ent, her working conditions or her ability to perform her job—the hallm arks of a hostile work environm ent—because her em ploym ent ended in J anuary 20 10 . If such postem ploym ent actions could constitute harassm ent, every claim of retaliation could also be a com ponent of a hostile work environm ent claim , underm in ing the distinction 17 between the two types of claim s. For all of the foregoing reason s, the J anuary 20 11 reference cannot be considered a com ponent act of a hostile work environm ent and sum m ary judgm ent is granted to defendants as to plaintiff’s Title VII hostile work environm ent claim s. Plaintiff’s rem aining claim s are her: (1) Title VII retaliation claim against Dynam ic; (2) NYSHRL and NYCHRL hostile work environm ent claim s again st all defendants; and (3) NYSHRL and NYCHRL retaliation claim s against all defendants. IV. D e fe n d an ts H ave Faile d to Sh o w Plain tiff W aive d H e r Re m ain in g Claim s Defendants seek sum m ary judgm ent on plaintiff’s rem aining claim s on the grounds that plaintiff waived her claim s by signing the Release on April 16, 20 11. The Release plainly en com passes plaintiff’s rem aining claim s and, if it were enforceable, the Court would be com pelled to grant sum m ary judgm ent to defendants. The Release specifically included a waiver of plaintiff’s Title VII and NYSHRL claim s and, by including “any claim or dam age arising out of your em ploym ent with and/ or separation from the Com pany (including a claim for retaliation) under any com m on law theory or any federal, state or local statute or ordinance not expressly referenced above,” also encom passed plaintiff’s factually identical NYCHRL claim s. The Release also waived plaintiff’s retaliation claim s because all alleged acts of retaliation occurred prior to her signing the release. See Krysa Aff. Ex. C ¶ 1 (waiving “all claim s . . . that you ever had or now have . . . arising out of or relating to your em ploym ent with and/ or separation from the Com pany”). Finally, the Release also waived plaintiff’s claim s against defendants Krysa, Rostkowski, and Balzofiore in their in dividual capacities, for it included claim s against Dynam ic’s “officers, directors . . . corporate affiliates, subsidiaries, parent 18 com panies, agents and em ployees (each in their individual an d corporate capacities). . . .” See Krysa Ex. C ¶ 1. However, sum m ary judgm ent m ust be den ied because m aterial issues of fact exist as to whether the Release is enforceable. The Letter Agreem ent provided a specific m ethod of acceptance: plaintiff was to “sign and return the Letter Agreem ent and Attachm ent A (“Release”) to [Dynam ic] by March 19, 20 11.” Krysa Aff. Ex. B at 1 (em phasis in original). “It is a fundam ental rule of contract law that an acceptance m ust com ply with the term s of the offer.” Gram . v. Mutual Life Ins. Co. of N.Y., 30 0 N.Y. 375, 91 N.E. 2d 30 7, 311 (1950 ) (citations om itted); see also Restatem ent (Second) of Contracts § 60 (“If an offer prescribes the place, tim e or m anner of acceptance its term s in this respect m ust be com plied with in order to create a contract.”); 2 Williston on Contracts § 6:12 (4th ed.) (“[T]he m anner of acceptance m ay be specified in the offer, as a condition to acceptance, in which case it m ust be com plied with in order for a contract to be form ed.”). It is undisputed that plaintiff never signed the Letter Agreem ent an d did not sign the Release until April 6, 20 11. Thus, plaintiff’s acceptance was late and defective. A late acceptance cannot form a contract. “First, because the acceptance is late, it is not in com pliance with the term s of the offer. Second, when an offer sets a specific tim e for acceptance, the offer lapses upon the expiration of that tim e and therefore a late acceptance can not result in a contract because there is no longer an existing offer to accept.” Ellefson v. Megadeath, Inc., No. 0 4 Civ. 5395 (NRB), 20 0 5 WL 8 20 22, at *4 (S.D.N.Y. J an. 13, 20 0 5) (internal citations om itted); see also Thom as Am . Corp. v. Fitzgerald, 957 F. Supp. 523, 525 (S.D.N.Y. 1997) (because “a lapsed offer cannot be 19 accepted,” a late acceptance of a settlem ent agreem ent was not bin ding on the parties); Textron, Inc. v. Parkview Equities, Inc., 159 A.D.2d 989, 989, 552 N.Y.S.2d 750 (4th Dep’t 1990 ) (“An offer which specifies its duration autom atically term inates by the lapse of the tim e specified therein.”); Restatem ent (Second) of Contracts § 41(1) (“An offeree’s power of acceptance is term inated at the tim e specified in the offer.”). Instead, a late acceptance creates a counteroffer, which m ust in turn be accepted by the original offeror to create a contract. See 22 W. Main St., Inc. v. Boguszewski, 34 A.D.2d 358 , 311 N.Y.S.2d 565 (4th Dep’t 1970 ) (“The late acceptance was m erely a counter offer which m ust in turn be accepted by the original offeror to create a contract. . . . Since there was never any acceptance by defendant of plaintiff’s counter proposal, there was no contract between the parties to be enforced.”); Restatem ent (Second) of Contracts § 70 & cm t. a (late or defective acceptance “com m only has the effect of a counter-offer”). Plaintiff argues defendants did not accept her counteroffer because they did not sign the Letter Agreem ent or Release. Defendants argue that they accepted the Release through partial perform ance by forgiving the balance of plaintiff’s personal loan. See Krysa Aff. ¶ 6; Dynam ic Reply at 9-10 (arguing plaintiff received the benefit of loan forgiveness). To accept plaintiff’s counteroffer, defendants need not have responded in writing. Under New York law, “a counteroffer m ay be accepted by conduct.” Daim on v. Fridm an, 5 A.D.3d 426, 427, 773 N.Y.S.2d 441 (2d Dep’t 20 0 4) (collecting cases); see, e.g., Allied Builders v. Banjoku, 6 Misc. 130 , 130 , 80 0 N.Y.S.2d 341 (N.Y. Sup. Ct. App. Term 20 0 5) (tenant’s continued occupancy, following notification of new lease term s, deem ed acceptance); Eldor Contr. Corp. v. Cnty. of Nassau, 272 A.D.2d 50 9, 50 9-10 , 70 8 N.Y.S.2d 447 (2d Dep’t 20 0 0 ) (where parties negotiated for a contract for the repair 20 of m otor, plaintiff accepted defendant’s counteroffer by shipping a m otor for repair); J osephine & Anthony Corp. v. Horwitz, 58 A.D.2d 643, 396 N.Y.S.2d 53 (2d Dep’t 1997) (defendant’s cashing of plaintiff’s checks indicated acceptance of plaintiff’s offer). However, there is nothing in the record to in dicate that defendants in any way com m unicated to plaintiff, either by word or conduct, that the loan was forgiven and her counteroffer accepted. As far as the record shows, the parties did not com m unicate at all between the tim e plaintiff signed the Release on April 6, 20 11 and her letter dated J une 13, 20 11, disclaim ing it. Nor did the parties alter their behavior: there is no eviden ce, for exam ple, that Defendant regularly dem anded paym ent and then suddenly ceased upon receipt of the Release, conferring a benefit on plaintiff that m ight reasonably indicate acceptance. Absent exceptional circum stances, silence will not be construed as acceptance. Daim on, 773 N.Y.S.2d at 427; Russell v. Raynes Assocs. Ltd. P’ship, 166 A.D.2d, 569 N.Y.S.2d 40 9 (1st Dep’t 1991) (“Generally, intent to accept an offer m ay not be inferred from silence” unless that silence “would be deceptive and beguiling and failure to speak therefore m isleads the other party.” (internal quotations and citations om itted)); Restatem ent (Second) Contracts § 69(1) (setting forth exceptional circum stances, including where the offeree “silently takes the ben efit of offered services”). Defendants have not shown that exceptional circum stances exist. The only affirm ative act that defendants took was to m ail plaintiff the purported severance paym ent on J uly 11, 20 11. However, defendants m ailed the check several weeks after plaintiff effectively revoked her counteroffer and therefore the paym ent could not constitute acceptance. For the foregoing reasons, defendants have failed to show the Release is enforceable and sum m ary judgm ent as to plaintiff’s rem aining claim s m ust be denied. 21 CON CLU SION For all of the foregoing reasons, sum m ary judgm ent is granted as to plaintiff’s Title VII hostile work environm ent and Title VII retaliation claim s against Krysa, Rostkowski, and Balzofiore and plaintiff’s Title VII hostile work environm ent claim against Dynam ic. Sum m ary judgm ent is denied as to: (1) plaintiff’s Title VII retaliation claim against Dynam ic; (2) plaintiff’s NYSHRL and NYCHRL hostile work environm ent claim s against all defendants; and (3) plaintiff’s NYSHRL and NYCHRL retaliation claim s against all defendants. SO ORD ERED . Dated: Brooklyn, New York J uly 25, 20 12 _ _ / s/ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ I. Leo Glasser United States District J udge 22
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
