Krause v Lancer & Loader Group, LLC

[*1] Krause v Lancer & Loader Group, LLC 2013 NY Slip Op 23142 Decided on May 1, 2013 Supreme Court, New York County Edmead, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on May 1, 2013
Supreme Court, New York County

Jessica Krause, Plaintiff,

against

Lancer & Loader Group, LLC, and JONATHAN LEVINE, Defendants.



158934/2012



Attorney for Plaintiff Jessica Krause:

ANTHONY CARABBA, ESQ.

CARABBA LAW FIRM, P.C.

acarabba@carabbalaw.com

85 Worth St FL 3,

New York, NY 10013

Attorney for Defendants Lancer & Loader Group, LLC and Jonathan Levine:

ROBERT J. KENNEY, ESQ.

HOFHEIMER GARTLIR & GROSS, LLP

530 Fifth Avenue 9th Floor,

New York, NY 10036

rkenney@hgg.com

Carol R. Edmead, J.

In this pregnancy discrimination action by plaintiff Jessica Krause ("plaintiff"), defendants Lancer & Loader Group, LLC ("LLG") and Jonathan Levine ("Levine") (collectively, "defendants") move pursuant to CPLR 3211 (a)(7) for an order dismissing plaintiff's complaint.

Background Facts

LLG is a wholesaler of battery-operated LED lights located in New York, New York. Plaintiff was allegedly employed as LLG's national sales manager from approximately March 2007 through October 19, 2011, when she was terminated. She worked mostly from home in New Jersey, but traveled several times a month for trade shows and client meetings. Plaintiff alleges that immediately prior to her termination, the company's sales were rising, largely due to her sales efforts and the large accounts she procured.

On or about August 12, 2011, two months before her termination, plaintiff learned that [*2]she was pregnant, and began considering moving with her husband to North Carolina to start her family. On September 19, 2011, plaintiff emailed the company's president Levine and vice-president Brian Johnson ("Johnson") to ask for their "blessing" before she made her final decision regarding the move and to assure them that the move would not impact her work performance. However, plaintiff did not tell them she was pregnant at this time.

Later that day, Johnson replied that he had no issue with plaintiff's move and wished her luck. Having not heard from Levine, on or about September 27, 2011, plaintiff called Johnson to express her concern and officially informed him of her pregnancy. Shortly thereafter, on or about October 19, Levine fired plaintiff, stating as the reasons "poor economy" and reduced sales.

On December 17, 2012, plaintiff commenced this action against defendants, alleging five causes of action: (1) gender/pregnancy discrimination under the New York State Human Rights Law ("NYSHRL") (NY Executive Law §290 et seq.) and New York City Human Rights Law ("NYCHRL") (NYC Admin Code §8-101 et seq.); (2) disability discrimination under the NYSHRL and NYCHRL; (3) aiding and abetting pregnancy discrimination under the NYSHRL and NYCHRL; (4) intentional infliction of emotional distress; and (5) violation of New York State Labor Law for unpaid wages.

In support of their motion to dismiss the complaint, defendants argue first, that plaintiff's pregnancy discrimination claim should be dismissed because there is no causal connection between plaintiff's pregnancy and her loss of job. She has not adequately alleged that she satisfactorily performed her job duties, or that her discharge occurred under the circumstances giving rise to an inference of discrimination, i.e., that defendants knew she was pregnant and terminated her because of her pregnancy and that, after termination, her position was filled by a [non-pregnant employee]. Defendants submit an affidavit of Johnson wherein he states that plaintiff never advised him of her pregnancy and he did not know that plaintiff was pregnant until the day she was laid off. The complaint does not allege that plaintiff told Levine about her pregnancy before she was terminated (Johnson Affidavit, exhibit C). Defendants also submit Levine's affidavit in which he states that he only learned of plaintiff's pregnancy after he told her that LLG could no longer afford to employ her, at which time, plaintiff responded: "That's too bad because I was going to tell you good news: I'm pregnant" (Levine Affidavit, exhibit B at ¶ 16).

Further, the legitimate reasons of plaintiff's termination were her poor job performance and the economic recession. Thus, her position was eliminated as part of a work force reduction. Plaintiff's claim of her high work performance is untrue as her sales numbers were the lowest in 2009-2010 and in the first two quarters of 2011, and some of her accounts generated yearly losses.

Next, plaintiff'ssecond cause of action for disability discrimination must likewise be dismissed because plaintiff has not alleged facts connecting her disability/pregnancy to her termination, as her allegations that Johnson knew of her pregnancy are speculative.

The third cause of action for aiding and abetting in pregnancy discrimination should be dismissed because it is predicated on the failed discrimination claim as plaintiff first has to establish the liability of her employer in order to assert this claim.

Further, plaintiff's claim for intentional infliction of emotional distress should also be dismissed for failure to alleged outrageous conduct. [*3]

Finally, plaintiff fails to state a claim against Levine as an individual defendant since there are no allegations as to how Levine was personally involved in the alleged discriminatory acts. There are no allegations that Johnson relayed his purported knowledge of plaintiff's pregnancy to Levine, such that plaintiff's pregnancy became the reason for her layoff.

Plaintiff opposes the motion, arguing that defendants motion is frivolous as it goes beyond the limited standards of the CPLR 3211 (a)(7). Defendants' affidavits at most, raise disputed facts.

Plaintiff's gender/pregnancy discrimination claim is properly stated as plaintiff need not plead specific facts and giving "fair notice" of the nature of the claim is sufficient. And in any event, plaintiff pleaded facts establishing a prima facie case of discrimination, i.e., that she was in the protected class due to her pregnancy; she was "qualified" for the position, since Levine specifically solicited plaintiff for that position based on his knowledge of her sales skills at another company where they worked together; and she was fired.

Notably, the inferences of discrimination are raised by the facts that plaintiff was fired shortly after she informed her boss of her pregnancy; prior to the time of her termination in October 2011, plaintiff was the second highest revenue generator at the company, generating 30% of the company's domestic revenue; she received praise from her superiors and clients and never received a negative performance review; plaintiff was the only employee terminated in 2010 or 2011; and, in or about April 2011, defendants hired [an] administrative assistant to assist with the increased business, largely attributed to her two new clients, Meijer, Inc. and True Value Hardware.

Next, plaintiff has alleged [in her complaint and affidavit] that defendants knew of her pregnancy because she told Johnson about it, who, as a vice president of the company, reported directly to Levine, and therefore, was part of the "corporate hierarchy," such that his knowledge should be imputed to the corporate defendant. Johnson was plaintiff's supervisor, who by his own account, was really "running the company" with Levine (Krause Affidavit at ¶¶8- 9). Thus, it is reasonable to infer that Johnson shared the pregnancy information with Levine.

Plaintiff further argues her disability discrimination claim is adequately stated as pregnancy is considered disability within the meaning of NYSHRL and NYCHRL.

The claim foraiding and abetting pregnancy discrimination is adequately stated under NYSHRL §296(6) and NYC Admin Code §8-107(6). Levine is individually liable for discrimination under both the state and city laws, because he knew plaintiff was pregnant when he fired her.

And, plaintiff is not required to show or plead "pretext" for discrimination to defend a discrimination claim challenged by a CPLR 3211 motion to dismiss.

Further, plaintiff withdraws her fourth cause of action for intentional infliction of emotional distress, but asserts that the fifth cause of action for violation of New York State labor law for unpaid wages (NY Labor Law §§191; 197) should stand, particularly since defendants did not specifically address it in their motion.

In reply, defendants add that any knowledge of plaintiff's pregnancy, allegedly obtained by Johnson, cannot be imputed to defendants because Johnson was merely a salesman and not part of the corporate hierarchy.

Defendants also add that plaintiff's affidavit in opposition to the motion contains new [*4]facts, not previously alleged in the complaint, i.e., that plaintiff wears a woman's size zero so her pregnancy was noticeable at seven weeks; that she did not drink alcohol at a business event on September 24-25, 2011, which raised questions from various people, including clients, as to whether she was pregnant; that she wanted Johnson to learn about her pregnancy first hand rather than through industry gossip and Johnson's alleged knowledge about her pregnancy constitutes notice to defendants because he was "running the company" together with Levine as his "second in command" and regularly apprised Levine of all company matters (plaintiff Affidavit). However, these facts are discredited by Johnson's and Levine's affidavits. And, the liberal standard for asserting an employment discrimination claim adopted by the First Department in Vig v New York Hairspray Co., L.P. (67 AD3d 140, 145, 885 NYS2d 74, 77 [1st Dept 2009]) should not be followed because in that decision, the First Department relied on the US Supreme Court's cases that have been since impliedly overruled by the federal courts [mostly in other circuits].

Defendants also state that at this time, they do not seek the dismissal of the fifth cause of action for unpaid wages, but note that on or about March 18, 2013, LLG paid plaintiff $5,548.97 on account of her alleged unpaid wages.

Discussion

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]).

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, 389 NYS2d 314 [1976]; Arrington v New York Times Co., 55 NY2d 433, 442 [1982]). As to affidavits submitted by the defendant, they will almost never warrant dismissal under CPLR 3211, unless they "establish conclusively that [defendant] has no [claim or] cause of action" (Lawrence v Graubard Miller, 11 NY3d 588, 595, 873 NYS2d 517, 520 [2008], citing Rovello v Orofino Realty Co., 40 NY2d 633, 636). Thus, the court may not rely on facts alleged by defendants to defeat the claims unless the evidence demonstrates the absence of any significant dispute regarding those facts and completely negates the allegations against the moving defendants (Lawrence v Graubard Miller, 11 NY3d 588, supra).

Gender/Pregnancy Discrimination (First Cause of Action)

Plaintiff has stated a cognizable claim for discrimination based on pregnancy under both [*5]NYSHRL and NYCHRL.

A. NYSHRL

The Human Rights Law, as set forth in the 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, inter alia, because of the individual's sex (NYSHRL §296 (1)(a)).

While neither the NYSHRL nor the NYCHRL explicitly names pregnancy as a type of discrimination, the Court of Appeals consistently held that employment discrimination on the basis of pregnancy falls within the prohibitions of the Executive Law §296 (1)(a) as sex or gender discrimination (see Mittl v New York State Div of Human Rights, 100 NY2d 326, 794 NE2d 660 [2003] (holding that "the Human Rights Law prohibits discharge of an employee because of pregnancy") citing Executive Law §296 (1); Elaine W. v Joint Diseases N. Gen. Hosp., 81 NY2d 211, 216, 597 NYS2d 617 [1993] (holding that "distinctions based solely upon a woman's pregnant condition constitute sexual discrimination")[citation omitted]).

This court uncovered virtually no First Department cases on point, and the parties do not cite any, dealing with termination of employment claims based on pregnancy in the context of a CPLR 3211 motion to dismiss for failure to state a cause of action.[FN1] And, the appellate courts' decisions in other departments involve either reviews of a determination by the State Division of Human Rights or determinations on a summary judgment motion(see Argyle Realty Associates v New York State Div of Human Rights, 65 AD3d 273, 882 NYS2d 458 [2d Dept 2009]; Energy Expo v the New York State Division of Human Rights, 112 AD2d 302, 491 NYS2d 748 [2d Dept 1985]; Thomas A. Galante & Son, Inc. v State Division of Human Rights, 76 AD2d 1023, 429 NYS2d 480 [3d Dept 1980]).

"The standards for establishing unlawful discrimination under section 296 of NYSHRL are the same as those governing Title VII cases under the Federal Civil Rights Act of 1964" (Mittl, citing Ferrante v American Lung Assn., 90 NY2d 623, 629, 665 NYS2d 25 [1997]; see generally, Espaillat v Breli Originals, 227 AD2d 266, 268, 642 NYS2d 875 [1st Dept 1996]; 42 USC §2000e et seq.; see 42 USC §2000e—2 [a][1]). Furthermore, the NYSHRL provides the same protections as does the federal Pregnancy Discrimination Act of 1978 ("PDA"). PDA was enacted as an amendment to Title VII of the Civil Rights Act of 1964 ("Title VII"), to clarify that pregnancy discrimination is a form of gender discrimination, prohibited by Title VII (see 42 USC §2000e [k][FN2]; Saks v Franklin Covey Co., 316 F3d 337, 343 [2d Cir 2003]; Ingenito v Riri USA, Inc., 2013 WL 752201 [EDNY 2013], citing AT & T Corp. v Hulteen, 556 US 701, 701, 129 [*6]SCt 1962 [2009]). "An employment practice is unlawful in contravention of the PDA when pregnancy is a motivating factor' for an adverse employment action" (Ingenito; Briggs v Women in Need, Inc., 819 FSupp2d 119, 126 [EDNY 2011]; see also Saks, 316 F3d at 343; Kerzer v Kingly Mfg., 156 F3d 396, 400 [2d Cir 1998]).

"In addition, employment discrimination cases are [ . . . ] generally reviewed under [a] notice pleading standard" (Vig v New York Hairspray Co., L.P., 67 AD3d 140, supra]).[FN3] Under a notice pleading, plaintiff need not plead specific facts, but only need give defendant "fair notice" of the nature and grounds of her claims (id.).

To state a claim for discrimination, a plaintiff must allege that she is a member of a protected class, that plaintiff was discharged from a position for which she was qualified, and that the discharge occurred under circumstances giving rise to an inference of unlawful discrimination (Mittl, 100 NY2d 326, supra).

Here, the complaint alleges, inter alia, that plaintiff was in a protected class due to her pregnancy immediately prior to her discharge; she was recruited by Levine to work for LLG based on his prior knowledge of plaintiff's "ability to procure sales," and thus, that she was qualified for the position she was hired for; and that she was terminated from her job shortly after telling her supervisor [Johnson] that she was pregnant.

With respect to the timing, it has been held that temporal proximity between a plaintiff's termination and the announcement of her pregnancy can raise an inference of discrimination (Smith v K & F Industries, Inc., 190 FSupp 643 [SDNY 2002][finding inference of discrimination where termination occurred one month after announcement of plaintiff's pregnancy]; see Flores v Buy Buy Baby, Inc., 118 FSupp2d 425, 430—31 [SDNY 2000]; Bond v Sterling, Inc., 997 FSupp 306 [NDNY 1998]; cf. Koester v New York Blood Center, 55 AD3d 447, 866 NYS2d 87 [1st Dept 2008] [temporal proximity between disabled employee's hotline complaint of disability and race discrimination and employer's decision to terminate employee was alone insufficient to support employee's claim of retaliatory discharge where termination followed more than one year of progressive disciplinary complaints from employee's supervisors concerning her repeated unapproved absences, lateness, poor performance and unprofessional behavior]).

Here, given the alleged timing of plaintiff's discharge, i.e., shortly after telling Johnson of her pregnancy on September 27, 2011, and receiving a call/email from Levine on October 6, 2011 to come to New York office for a meeting on October 13, (which culminated in her termination the following week when it was rescheduled) the complaint sufficiently alleges "circumstances raising an inference of discrimination" (Bond v Sterling, Inc., 997 FSupp 306 [*7][NDNY 1998]).

In an employment discrimination context plaintiff is not required to do more to defeat a CPLR 3211 motion (see Artis v Random House, Inc., 34Misc 3d 858, 936 NYS2d 479 [Sup Ct, New York County 2011], citing Nonnon v City of New York, 9 NY3d 825, 827, 842 NYS2d 756, 874 NE2d 720 [2007][the court must accept the complaint's allegations as true, liberally construe them, and draw all reasonable inferences in plaintiff's favor]; see also Vassallo v The Burmax Co., Inc., 2012 WL 2050564 (Trial Order)[Sup Ct, Suffolk County 2012]). Thus, defendants' arguments that plaintiff has failed to demonstrate pretext or intentional discrimination on their part are of no consequence to this motion to dismiss.

Furthermore, contrary to defendants' arguments, whether Johnson, or any other company employee, including Levine, knew of plaintiff's pregnancy, is a disputed fact, which does not "completely negate the allegations against the moving defendants" so as to defeat plaintiff's cause of action for pregnancy discrimination at this pleading stage (see Lawrence v Graubard Miller, 11 NY3d 588, supra). And, since this CPLR 3211 motion does not involve any factual determination, the court does not reach the analysis suggested by defendants, i.e., that they had a proper, non-discriminatory business purpose for terminating plaintiff based on her poor performance.

Therefore, plaintiff adequately stated a claim for pregnancy discrimination under NYSHRL.

B. NYCHRL

Plaintiff likewise adequately pleaded her claim for pregnancy discrimination under NYCHRL.

NYCHRL §8-107(1) provides, in pertinent part:

"It shall be an unlawful discriminatory practice: (a) For an employer or an employee or agent thereof, because of the actual or perceived

[ . . . ] gender [ . . . ] to discharge from employment such person or to discriminate

against such person in compensation or in terms, conditions or privileges of employment."

(NYC Admin Code §8-107(1)(a)).

This statute, as revised by the Local Civil Rights Restoration Act of 2005 (the 2005 Restoration Act), is construed by courts more liberally than its state or federal counterparts [FN4] (Zakrzewska v The New School, 14 NY3d 469, 902 NYS2d 838 [2010]; Williams v New York City Housing Authority, 61 AD3d 62, 872 NYS2d 27 [2009][a court must evaluate the claims with regard for the statute's "uniquely broad and remedial purposes); Brightman v Prison Health Services, Inc., 62 AD3d 472, 878 NYS2d 357 [1st Dept 2009]; Loeffler v Staten Island Univ Hosp., 582 F3d 268, 278 [2d Cir 2009]). Therefore, since plaintiff adequately stated her claim for pregnancy-based discrimination under the State HRL, such allegations are equally sufficient for her claim under the even broader protection of the City HRL.

Disability Discrimination (Second Cause of Action) [*8]

Executive Law §296 (1) (a) provides, inter alia, that it is an unlawful discriminatory practice for an employer to discharge an employee on the basis of a disability (see Executive Law §296 (1)(a), supra; Germakian v Kenny Intl. Corp., 151 AD2d 342 [1989], lv denied 74 NY2d 615 [1989]). "Disability" is defined by Executive Law §292 (21) as "(a) a physical, mental, or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or (b) a record of such an impairment or (c) a condition regarded by others as such an impairment, provided, however, that in all provisions of this article dealing with employment, the term shall be limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held"

(Executive Law §292 (21)).

The First Department has held that disability provisions of the NYSHRL and NYCHRL are not equivalent and require a different analysis (Phillips v City of New York, 66 AD3d 170, supra). Thus, it has been stated that "the jurisprudence that has developed in interpreting both the NYSHRL and Title VII should merely serve as a base for the New York City Human Rights Law, not its ceiling'" (Defrancesco v Railroad, 2012 WL 2396521, citing Jordan v Bates Advertising Holdings, Inc., 11 Misc 3d 764, 769 [Sup Ct New York County 2006]).

Unlike NYSHRL, NYCHRL defines "disability" solely in terms of impairments: "any physical, medical, mental or psychological impairment, or a history or record of such impairment" (Admin Code §8-102 (16)(a)), which includes "an impairment of any system of the body" (Admin Code §8-102 (16)(b); Phillips v City of New York, 66 AD3d 170 [1st Dept 2009] (an employee's breast cancer has been found to constitute a disability under the NYCHRL)).

Furthermore, while the NYSHRL is applied consistently with the principles of federal civil rights laws [as set forth in the Federal Civil Rights Act of 1964] (Mittl, citing Ferrante v American Lung Assn., 90 NY2d 623, 629, supra; Rosenblatt v Bivona & Cohen, P.C., 946 FSupp 298 [SDNY 1996]; Defrancesco v Railroad, 2012 WL 2396521 (Trial Order)[Sup Ct , New York County 2012]), the First Department instructed that NYSHRL and NYCHRL "have a broader definition of disability' than does the ADA [since] neither statute requires any showing that the disability substantially limits any major life activity" (Phillips v City of New York, 66 AD3d 170, 884 NYS2d 369 [1st Dept 2009][emphasis added]).[FN5]

In order to state a cause of action for disability discrimination under the State [or City] HRL, the complaint must allege that the plaintiff suffers a disability and that the disability caused the behavior for which the individual was terminated (Vig v New York Hairspray Co., L.P., 67 AD3d 140, 146, citing Matter of McEniry v Landi, 84 NY2d 554, 558 [1994]). [*9]

Here, plaintiff has failed to allege any disability within the meaning of NYSHRL, i.e., that her pregnancy impaired her in exercising a normal bodily function, or that she had any complications in connection with her pregnancy, which prevented her from normal life activity (Executive Law 292 [21]; see Lehmuller v Incorporated Village of Sag Harbor, 944 FSupp 1087 [EDNY 1996] (a normal pregnancy is merely the natural consequence of reproduction)).

And even under NYCHRL's liberalized and expansive definition of disability, plaintiff has failed to allege any "impairment" that she suffered as a result of her pregnancy (Admin Code §8-102 (16)(b); Phillips v City of New York, 66 AD3d 170), which caused any behavior for which she was allegedly terminated (see Vig v New York Hairspray Co., L.P., 67 AD3d 140, 146).

This court has found no cases in this or other departments, nor does plaintiff cite any, holding that a [normal] pregnancy qualifies as a disability within the meaning of the State or City Human Rights Law.[FN6] Moreover, the Court of Appeals specifically held that "distinctions based solely upon a woman's pregnant condition constitute sexual discrimination" (Elaine W. v Joint Diseases N. Gen. Hosp., Inc., 81 NY2d 211, 216, supra).

Therefore, under the circumstances herein, plaintiff's pregnancy may not serve as the basis for her disability discrimination claim under NYSHRL or NYCHRL, and the second cause of action is dismissed.

Levine's Liability

An individual may be liable for discrimination in violation of the NYSHRL as either an employer (Executive Law §296(1)), or as an "aider and abettor" (id., §296(6)).

Section 296(1) of the NYSHRL provides for individual liability where a defendant has "an ownership interest," or if the defendant has "the authority to hire and fire' employees" (see Edwards v Jericho Union Free Sch. Dist., 2012 WL 5817281, at *7 [EDNY 2012]; see also Scalera v Electrograph Sys., Inc., 2012 WL 991835, at *14—15 [EDNY 2012] (noting the circumstances under which individuals may be liable under NYSHRL)).

Accepting the facts in the complaint as true, and drawing all reasonable inferences therefrom, the court finds that plaintiff has a cognizable claim against Levine for pregnancy discrimination under the NYSHRL. Plaintiff's allegations that Levine is the owner of LLG; that he hired plaintiff; and, after plaintiff announced her pregnancy to Johnson who "regularly apprised Levine of all company matters," Levine fired her (complaint ¶; plaintiff affidavit ¶10), are sufficient to support the claim that Levine actually participated in the alleged discriminatory [*10]conduct at issue. Therefore, he could be held individually liable as an employer under NYSHRL §296(1).

Aiding and Abetting Discrimination (Third Cause of Action)

Further, under both Exec Law §296(6) and NYC Admin Code §8-107(6), an individual employee may be held liable for aiding and abetting discriminatory conduct.[FN7]

However, courts have held that an individual cannot aid and abet his own alleged discriminatory conduct (Medical Exp. Ambulance Corp. v Kirkland, 79 AD3d 886, 913 NYS2d 296 [2d Dept 2010] (supervisor whose conduct gave rise to plaintiff's sexual discrimination claim cannot be held liable under Executive Law §296(6) for aiding and abetting his own violation of the Human Rights Law); Strauss v New York State Dep't Of Educ., 26 AD3d 67, 73, 805 NYS2d 704 [2d Dept 2005]).

Here, since Levine's alleged actions give rise to the discrimination claim, he cannot be held liable for aiding and abetting, and this claim fails (see Raneri v McCarey, 712 FSupp2d 271, 282 [SDNY 2010]). Thus, this claim is severed and dismissed.

Finally, since plaintiff withdrew herfourth cause of action for intentional infliction of emotional distress, the branch of defendants' motion seeking dismissal of said claim is granted and said claim is also severed and dismissed.

Conclusion

Based on the foregoing, it is hereby

ORDERED that the motion by defendants Lancer & Loader Group, LLC and Jonathan Levine pursuant to CPLR 3217 (a)(7) to dismiss the complaint of plaintiff Jessica Krause is granted solely to the extent that the third cause of action for aiding and abetting pregnancy discrimination and the fourth cause of action for intentional infliction of emotional distress are severed and dismissed; and the motion is otherwise denied; and it is further

ORDERED that defendants Lancer & Loader Group, LLC and Jonathan Levine shall serve their Answer upon plaintiff within 20 days of entry of this order; and it is further

ORDERED that the parties shall appear for a preliminary conference on June 25, 2013, at 2:30 p.m., at Part 35, Room 438, 60 Centre Street, New York, New York. And it is further

ORDERED that counsel for plaintiff shall serve a copy of this order with notice of entry within 20 days of entry.

This constitutes the decision and order of the court.

Dated: May 1, 2013_____________________________

Hon. Carol R. Edmead, J.S.C. [*11]

In accordance with the accompanying Memorandum Decision, it is hereby

ORDERED that the motion by defendants Lancer & Loader Group, LLC and Jonathan Levine pursuant to CPLR 3217 (a)(7) to dismiss the complaint of plaintiff Jessica Krause is granted solely to the extent that the third cause of action for aiding and abetting pregnancy discrimination and the fourth cause of action for intentional infliction of emotional distress are severed and dismissed; and the motion is otherwise denied; and it is further

ORDERED that defendants Lancer & Loader Group, LLC and Jonathan Levine shall serve their Answer upon plaintiff within 20 days of entry of this order; and it is further

ORDERED that the parties shall appear for a preliminary conference on June 25, 2013, at 2:30 p.m., at Part 35, Room 438, 60 Centre Street, New York, New York. And it is further

ORDERED that counsel for plaintiff shall serve a copy of this order with notice of entry within 20 days of entry.

This constitutes the decision and order of the court. Footnotes

Footnote 1: The only First Department case dealing with the pre-answer motion to dismiss in this context found by this court is Flowers v Stillrock Management Inc. (179 AD2d 361, 578 NYS2d 546 [1st Dept 1992]), which held that a former employee did not plead any facts from which it could be concluded that she was subjected to sex discrimination, by being terminated due to her pregnancy.

Footnote 2: Tile VII, Section 42 USC §2000e (k) states in pertinent part:

"The terms because of sex' or on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy."

Footnote 3: Contrary to defendants' argument, Vig v New York Hairspray Co., L.P.,67 AD3d 140, supra,represents the First Department's determination to adhere to the relaxed "notice pleading" standards in employment discrimination claims. Even though in Vig, the First Department relied on the federal pleading standard articulated in Swierkiewicz v Sorema N.A., 534 US 506, 122 SCt 992 [2002]), Vig was decided on September 15, 2009, four months after the US Supreme Court rearticulated stricter federal pleading standards in Ashcroft v Iqbal, 556 US 662, 129 SCt 1937 [2009], on which defendants rely in their reply memorandum. Furthermore, the Ashcroft holding that a court does not need to accept as true "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," does not involve employment discrimination (Ashcroft v Iqbal, 556 US 662). Thus, Vig remains the governing law in this department as to the relaxed "notice pleading" standards in employment discrimination claims.

Footnote 4: The NYCHRL "shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably-worded to provisions of this title, have been so construed" (Admin Code §8—130).

Footnote 5: Under the ADA, "disability" is defined as (a) a "physical or mental impairment that substantially limits one or more of the major life activities; (b) a record of such impairment; or (c) being regarded as having such an impairment" (42 USC §12102) (emphasis added). Unlike the ADA, however, NYSHRL's definition of disability "covers a range of conditions varying in degree from those involving the loss of a bodily function to those which are merely diagnosable medical anomalies which impair bodily integrity and thus may lead to more serious conditions in the future" (Davis v, Bowes, 159 F3d 1346 [2d Cir 1998], citing State Div of Human Rights v Xerox Corp., 65 NY2d 213 [1985]).

Footnote 6: Federal courts have addressed the issue, at least in the context of the claims under the ADA, that pregnancy is not a disability (see e.g., Johnson v A.P. Prods., Ltd., 934 FSupp 625, 627 [SDNY1996][noting that neither an employee's pregnancy nor its complications were a disability under the ADA]; Lehmuller v Incorporated Village of Sag Harbor, 944 FSupp 1087 [EDNY 1996][holding that a normal pregnancy is merely the natural consequence of reproduction]). These courts based their conclusion in part on the Equal Employment Opportunity Commission's ("EEOC") regulations stating that "conditions, such as pregnancy, that are not the result of a physiological disorder are not impairment" (29 CFR Pt 1630, App §1630.2 (h)), and that "temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities" (29 CFR Pt 1630, App §1630.2 (j)). These courts also noted that Title VII and the PDA specifically covered employment discrimination on the basis of pregnancy, thereby obviating the need to extend the coverage of the ADA to protect pregnancy and related medical conditions (Johnson v A.P. Prods., Ltd., 934 FSupp 625, supra; Saks v Franklin Covey Co., 316 F3d 337).

Footnote 7: The language of both NYSHRL and NYCHRL is identical, providing that "it shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article, or attempt to do so" (Exec Law §296(6); NYC Admin Code §8-107(6)).