Montgomery v ELRAC, Enter. Holdings, Inc.

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Montgomery v ELRAC, Enter. Holdings, Inc. 2019 NY Slip Op 32896(U) August 29, 2019 Supreme Court, Bronx County Docket Number: 25814/2016E Judge: Ruben Franco Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] BRONX COUNTY CLERK 09/03/2019 10:16 AM INDEX NO. 25814/2016E c· NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 09/03/2019 '. SUPREME CO T OF THE STATE OF NEW YORK COUNTY OF RONX - IAS PART 26 Shaniqua Montt:?omery Index No. 258 14/20 16E Plaintiff MEMORANDUM DECISION/ORDER -againstELRAC, Enterprise Holdings, Inc., Simon Zais, Milly Zager; Does 1-10 Defendant. Ruben Franco, J. This is an action alleging gender and race-based di scriminati on and retaliation pursuant to the New York State Human Rights Law (NYSHRL; Executive Law § 296), and the New York City Human Rights Law (NYCHRL; New York City Administrative Code, § 8-101 et seq.), gender-based hostile work environment in violation of the NYSHRL and NYCHRL, defamation and defamation per se. Defendant Simon Zais (Zais) moves to dismiss the Comp laint (CPLR 32 1 I [a] [7]). Plaintiff separately moves to amend the Complaint to add race-based hostile work environment and to remove the defamation cause of action. The fo llowing facts are set forth in the proposed Amended Complaint: Plaintiff identifies herself as a black, gay female, who began to work at Enterprise Holdings, lnc. and ELRAC in February 20 15, as a senior customer service representative, where Zais was her superv isor. Defendant Milly Zager worked in the Hum an Resources Department. Zais was the manager at the Bronx branch of Enterprise Holdings, Inc. where plaintiff worked. Plaintiff's empl oyment was terminated on November 5, 20 15, allegedly fo r theft, which plaintiff denies. Zais is accused by plaintiff of creating a hostil e work environment for minorities during hi s time as a supervisor at E nterprise Holdi ngs, Inc. Plainti ff contends that she was targeted 2 of 13 [*FILED: 2] BRONX COUNTY CLERK 09/03/2019 10:16 AM INDEX NO. 25814/2016E NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 09/03/2019 because of her ( ace, sexual orientation and national origin, and as a result, was a victim of discrimination t at eventually resulted in her termination. Plainti ff personally heard defendant Zais make many degrading and di scriminating comments with egard to race, including: (a) Lincoln was the worse president cause he freed slaves. (b) The reason the government is so bad because of no confederacy. (c) Bmcc is a pre program school for Rikers Island ; mainly from the projects of the Bronx. (d) Plaintiff cannot come up in the company cause she doesn' t have the look or the speech (Amended Complaint ~ 15) Zais also made L her comments that referenced blacks as porch monkeys, along with derogatory comments aboJ Hasidic Jews and Hi spanics, which could not be quoted verbatim in the Complaint. Plaihtiff alleges that while she abided by the rules of the company, Enterprise Ho ldings common. Coincidi g with racially di scriminatory comments, management allegedly showed I favoritism to tHe other employees, such as Zais being promoted, even though he lacked the educational reqL rements for the position. Zais made untrue statements regarding plaintiff, accusing her of!!eing on drugs at work and stealing from the workplace. Plamtiffs gender was a factor in relatio to di scriminatory behavior as evidenced by Zais 's comments about --women's place being in the home and not at work" (Amended Complaint ~ 2 1). Plaintiff omplained about Zai s' s conduct to her managers prior to her termination and they were aware of hi conduct. Arguably condoning his behavior, the managers never took any action to terminate him. After complaining to managers Dan and Javier on October 28, 2015 , plaintiff was retaliated agl inst, as her employment was terminated. Following her termination, defendants 2 3 of 13 [*FILED: 3] BRONX COUNTY CLERK 09/03/2019 10:16 AM NYSCEF DOC. NO. 30 INDEX NO. 25814/2016E RECEIVED NYSCEF: 09/03/2019 informed her col workers that she had been terminated for theft th us defaming her. Plaintiff asserts that the statemer was not true, and that defendants knew it was not true at the time they uttered it. The fa lse information was published to plaintiff's fom1er co-workers to harm her reputation. On a ml on pursuant to CPLR 32 11 (a) (7), a Complaint must be liberally construed, the factual all egatiolns set forth must be accepted as true, the plaintiff must be given the benefit of all favorable inferehces therefrom, and the court must decide onl y whether the facts alleged fa ll under any recognized legal theory (Miglino v Bally Total Fitness of Greater N. Y. inc., 20 NY3d 342 [2013]; Lee v. F aw Jones & Co .. inc. , 12 1 AD3d 548 [1 51 Dept 20 14]). considered free(y "to Affidavits may be preserve inartfully pleaded, but potentially meritorious, claims" in a Complaint (Rovrllo v Orofino Realty Co. , 40 NY2d 633, 635 [ 1976]; Finkelstein Newman Ferrara LLP v Manning, 67 AD3d 538, 540 [ 151 Dept 2009]). Vague and conclusory allegati ons are insufficient to aintain a cause of acti on (see Fowler v American Lawyer Media, 306 AD2d 11 3 [ l5 1 Dept 2003]) Pursuant! to CPLR 3025 (b), leave to amend a pleading shall be freely given " upon such terms as may bJ jusf" and "absent prejudice or s urpri se directly resulting from the delay" (Fahey v County qfOntL io, 44 NY2d 934, 935 [1978]; see Tri-Tee Design. inc. v Zatek Corp., 123 AD3d 420 [l51 Dept 20 14]). '·Prejudice arises when a party incurs a change in position or is hindered in the preparation f its case or has been prevented from taking some measure in support of its position, and th se problems might have been avoided had the original pleading contained the proposed amendment" (Valdes v Marbrose Realty, 289 AD2d 28, 29 [ !51 Dept 2001]). As noted in MBIA Ins. cJ,p. v Greys10ne & Co.. Inc. (74 AD3d 499, 500 [I " Dept 2010]), a plaintiff does 3 4 of 13 [*FILED: 4] BRONX COUNTY CLERK 09/03/2019 10:16 AM NYSCEF DOC. NO. 30 INDEX NO. 25814/2016E RECEIVED NYSCEF: 09/03/2019 not need to esta lish the merit of its proposed new allegations, " but simply show that the proffered amendment is n t palpably insuffic ient or clearly devoid of merit." Plaintiff has proposed to rep lace the first cause of action for defamation with a claim fo r hostile work emironment based on race, to add that Zais's comments about a woman 's place being in the home and not at work was made numerous times, and undermined plaintiffs position with her co-workers nd empl oyer (proposed Amended Complaint ~ 21 ), and that plaintiff complained that Zais had ma e numerous derogatory comments about her race and gender (proposed Amended Complaint ~ 22) Althoug no prej udice has been shown, some of the proposed claims in the Amended Complaint are" alpably insufficient or clearly devoid of merit," thus, plaintiffs motion to amend the Complaint i granted in part. Zais has requested that the court consider his motion to dismiss in re lation to th Amended Complaint. Defamation and Defamation Per Se In Stepa ov v Dow Jones & Co. , Inc. (120 AD3d 28, 34 [1 st Dept 20 14]), the Court explained: Defamat on is ' the making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or di sgrace, or induce an evil opinion of him in the inds of right-thinking persons, and to deprive him of their friendly intercou e in society' (Foster v Churchill, 87 NY2d 744, 751 [1 996) [internal quotatio marks omitted]). To prove a cla im for defamation, a plaintiff must show: (1) a fa! e statement that is (2) publi shed to a third party (3) without privilege or authoriz ti on, and that (4) causes harm, unless the statement is one of the types of publicati ns actionable regardless of harm (see Dillon v City of New York, 261 AD2d 3 , 38 [151 Dept 1999]). Because the fals ity of the statement is an element of the d famation claim, the statement's truth or substantial truth is an absolute defense see Konrad v Brown, 91 AD3d 545, 546 [l51 Dept 20 12), Iv denied 19 N Y3d 8 4 [2012]). On a motion to dismiss a defamation claim, the court must decide ether the statements, considered in the context of the entire pub! ication, are ' reas nably susceptible of a defamatory connotation,' such that the issue is 4 5 of 13 [*FILED: 5] BRONX COUNTY CLERK 09/03/2019 10:16 AM NYSCEF DOC. NO. 30 INDEX NO. 25814/2016E RECEIVED NYSCEF: 09/03/2019 worthy qf submi ssion to a jury (Silsd01fv Levine, 59 NY2d 8, 12 [1 983], cert denied 464 us r 3 1 [1 983) [internal quotation marks omitted]). In Dillof v City of New York (26 1 AD 2d at 38), the Court added: " CPLR 30 16 (a) requires I that in a defaml'tion action, ' the particul ar words compla ined of ... be set forth in the complaint.' T he complaint . !so must allege the time, place and manner of the false statement and specify to whom it was m de (Arsenaull v Forquer, 197 AD 2d 554 [211d Dept 1993); Vardi v Mutual Life Ins. Co.. 136 AD2d b53 [I st Dept 1988))." Althougl the defamation cause of action is not included in plaintiff' s proposed Amended Complaint, the defamation per se cause of action remains. However, it fail s to set forth the particular word complai ned of, or to satisfy the publication requirement in support of that cla im (CPLR 301 6; s1e Dillon vCity of New York, 26 1 AD2d at 3 8), particular! y as to Zais. Further, pla inti ff does nl negate any of Zais' s arguments with respect to defamation or defamation per se. T hus, to the extent thi s claim is attributable to him the sixth cause of action for defamati on per se is dismi ssed. C laims Against Individual Defendants Generali ~, under both the NYSHRL and NYCHRL, an individual employee may be held I liable for aidingl and abetting discriminatory conduct (Executive Law § 296 [6) ; Admi nistrative Code § 8- 107 16] ; see Mitchell v TAM Equities, Inc., 27 AD3d 703, 707 [2nd Dept 2006)). However, an in ividual cannot aid and abet his own alleged discriminatory conduct (Maller of Medical Expres Ambulance Corp . v Kirkland, 79 AD3d 886, 888 [2nd Dept 20 1OJ; D'Amico v Commodities E1 h. , 235 AD2d 3 13, 315 [!51 Dept 1997)). Plainti ff has not asserted a cause of action or allege facts sufficient to state a cause of action for aiding and abetting against Zais (Executi ve Law 296 [6]; see Strauss v New York State Dept. ofEduc. , 26 A.D.3d 67, 73 [3rd Dept 5 6 of 13 [*FILED: 6] BRONX COUNTY CLERK 09/03/2019 10:16 AM NYSCEF DOC. NO. 30 INDEX NO. 25814/2016E RECEIVED NYSCEF: 09/03/2019 2005]). Since is' s alleged actions gave rise to the di scrimination claim, he cannot be held liable for aid ing and at etting The NYSHRL (Executive Law § 296 [I] [a]) provides fo r individual liability where a defendant has ,jan ownership interest," or if the defendant has " the authority to hire and fire I empl oyees" (sek Patrowich v Chemical Bank, 63 NY2d 541 , 542 [1 984]; Krause v Lancer & Loader Group. LLC, 40 Misc 3d 385, 398 [Sup Ct, NY County 20 13]). There are no allegations that Zais, as plaintiff's immediate supervisor, fits within the meaning of "employer" as set forth in Executive Law ~ 292 (5), and thus cannot be held personally liable for a vio lation of Executive Law§ 296 (l ) ( I) (see Patrowich v Chemical Bank, 63 NY2d at 542; Kaiser v Raoul's Rest. Cmp. , 72 AD3d 539 [1 1 Dept 201 OJ). The NYS HRL prohibits an " employer" from discriminating against individuals on t e basis of certain protected characteristics. Corporate employees, even managers and supervisors, cannot be held individually liable for employment discrimination unless they have an '·ownership T terest [in the company] or power to do more than carry out personnel decisions made by others'[ (Patrowich v Chemical Bank, 63 NY2d at 542, 543-544, ( 1984); see Pepler v Coyne, 33 AD3 434, 435 [l51 Dept 2006] ; Mitchell v TAM Equities, Inc., 27 AD3d at 707). There are no a llegatio s in the Complaint that Zais had an ownership interest in plaintiffs employer or that he had the a thority to do more than carry out personnel decisions made by others. Thus, Zais cannot be found indi vidually liable under the NYSHRL. The N Yf HRL expressly extends liability to "an employee," and .. includes fellow employees undel the tent of liabi lity, but only where they act wi th or on behalf of the employer in hiring, firing~ pa ing, or in admini ster'.ng the ' ter~ s, con~ition s or privileges of employment' --in other words, m s me agency or supervisory capacity." (Pnore v New York Yankees, 307 AD2d 67, 74 [l51 Dept 20J 3].) As revised by the Local Civil Rights Restoration Act of 2005 (the 2005 6 7 of 13 [*FILED: 7] BRONX COUNTY CLERK 09/03/2019 10:16 AM INDEX NO. 25814/2016E NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 09/03/2019 Restoration Act , the NYCHRL is construed by courts more li berall y than its state or federal counterparts (se Zakrzewska v New School, 14 NY3d 469, 479 [20 1OJ; Williams v New York City Hous. Auth., 6 1 AD3d 62, 66 [ 1st Dept 2009]). A court must evaluate the claims with regard for the NYCHRL's " uniquely broad and remedial purposes" (id. at 68; Brightman v Prison Health Servs.. Inc., 62 ' D3d 472 [I st Dept 2009]). Since the Complaint a lleges that Zais was acting in a supervisory cap city, he could be found individually li able under the liberal construction of the NYCHRL. Discrimination The NY · HRL (Executi ve Law § 296 [ 1] [a]), makes it an unlawful di scriminatory practice for an employer to discriminate against an indiv idual in compensation or in terms, conditions or I privi leges of e ployment because of, inter alia, the indi vidual' s race or sex (see Basso v EarthLink, Inc. , 157 AD3d 428 [I st Dept 2018]). "The standards for recovery under section 296 of 1964 (42 US I § 2000e el seq.)'· (Ferrante v American lung Assn., 90 NY2d 623, 629 [1997]; see Espaillat v Breli Originals, 227 AD2d 266 268 [l st Dept 1996)). Generali}, employment discrimination cases are reviewed under notice pleading standards, so that a plaintif a lleging employment di scrimination need not plead specific facts establishing a prima jc1cie case of discrimination " but need onl y give ' fair notice' of the nature of the claim and its grounds"' (Vit v New York Hairspray Co .. l.P. , 67 AD3d 140, 145 [ 1 51 Dept 2009)). To state a cJajm for discri fl ination, a plaintiff must allege that she is a member of a protected class, that plainti ff was di charged from a position for which she was qualified, and that the discharge occurred under aircumstances giving rise to an inference of unlawful discriminati on (Rainer N. Mill/. Ophthalml ogisl. P. C. v New York State Div. of Human Rights, 100 NY2d 326, 330 [2003]). 7 8 of 13 [*FILED: 8] BRONX COUNTY CLERK 09/03/2019 10:16 AM NYSCEF DOC. NO. 30 INDEX NO. 25814/2016E RECEIVED NYSCEF: 09/03/2019 The NYCHRL (Administrative Code of the City of NY§ 8- 107 [l]) provides, in pertinent part: "It shall be an unlawful discriminatory practice: (a) For an employer or an employee or agent thereof, becaus of the actual or perceived ... race, ... gender ... to discharge from employment such person or ... to discriminate against such person in compensation or in terms, conditions or privileges of emr loyment." (Admini strative Code § 8- 107 [I] [a]). To properly plead a di scrimination claim, plaintiff need not plead specific facts; it is sufficient that t, e plaintiff give notice of the nature of the .claim. To establish a gender or race r discrimination craim under the City Human Rights Law, a plaintiff need only demonstrate " by a preponderance the evidence that she has been treated less well than other employees because of her gender [or rr e]" (Williams v New York City Hous. Auth. , 61 AD3d at 78; Suri v Grey Global Group. Inc., I 61AD3d 108, 1 I4 [ l5 Dept 2018]). 1 Plaintiff does not allege that she was treated less well than oT er employees because of her gender or race. To establi sh a prima facie case of discrimination, plaintiff must plead facts establish that she is in a protected class, that she was qualified for the position; and that she was terminated. Plaintiff states that she is a black, gay female, that "wI competent and qualified for [the] position" (Complaint ~ I 2), and that she was terminated. Ho ever, as to Zais, plain ti ff has not adequately alleged that her discharge occurred under the circu stances giving rise to an inference of discrimination. There is no allegation that Zais had any rol ~ in terminating plaintiff, or that after her termination, her position was filled by a person other thall female, black, or gay employee. Thus, the second, third, fourth and fifth causes of action a Uegi n0 discrimination, pursuant to the NYSHRL and NYCHRL, are dismi ssed. Hostile Work Environment 8 9 of 13 [*FILED: 9] BRONX COUNTY CLERK 09/03/2019 10:16 AM NYSCEF DOC. NO. 30 INDEX NO. 25814/2016E RECEIVED NYSCEF: 09/03/2019 To establi sh a hostile work environment claim under the NYSHRL, as under Title VII, a plaintiff must demonstrate that " the workplace is penneated with di scriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment"' (Forrest v Jewish Guild.for the Blind. 3 N Y3d 295 , 3 10 [2004]). Merely offensive conduct is not actionable. To be actionable the inc idents must be repeated and continuous; isolated acts or occasional episodes wi ll not merit relief (id. at 3 11 ; see Ferrer v Ne w York State Div. of Human Rights, 82 AD3d 43 1 ( 1st Dept 20 11). Accepting that Zais made the statements set fo rth in the Amended Complaint, the incidents described do not indicate a situation "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive workjng environment.'. The fo llowing causes of action are di smissed as to Zais: the first cause of action in the Amended Complaint to the extent it relates to a hostile work environment pursuant to the NYSHRL, and the tenth cause of action alleging a gender-based hostile work environment, pursuant to the N YSHRL. As noted, the N YCHRL must ··be construed more broadly than federal civil rights laws and the State HRL'. (Williams v New York City Hous. Auth. , 6 1 AD3d at 74 [I st Dept 2009] ; see Albunio v City of Ne1>v York, 16 N Y3d 472, 477-478 [20 11 ]). Under the NYCHRL a plaintiff need not show that the harassment was "severe and pervasive," but she must show that she was subj ected to conduct that amounted to more than ·'petty slights and trivial inconveniences," because of her membership in a protected category (Williams v New York City Hous. Auth. , 6 1 AD3d at 80). T he primary foc us under the NYCHRL is on whether the alleged harassment "constitutes inferior terms and conditions based on gender [or race]'" (id. at 75). Under either the NYSHRL or the NYCHRL, the plaintiff must demonstrate that the abusive conduct was motivated by animus toward a protected class (see La Marca-Pagano v Dr. Steven Phillips, P. C., 129AD3d9 18 [2"d Dept 20 15]; 9 10 of 13 [*FILED: 10] BRONX COUNTY CLERK 09/03/2019 10:16 AM NYSCEF DOC. NO. 30 INDEX NO. 25814/2016E RECEIVED NYSCEF: 09/03/2019 see also Cadet-Legros v New York Univ. Hosp. Ctr., 135 AD3d 196, 204 n5 [1st Dept 20 15]). A plaintiff's clai~ must be viewed holisticall y (see Suri v Grey Global Group. Inc. , 164 AD3d at 114). Here, plaintiff predicates her claim that she was subjected to a gender and race-based hostile work environment on the all eged comments made by Zais, which, although not severe and pervasive, could be determined to be more than petty slights and trivial inconveniences. The fo llowing causes of action survive as to Zais: the first cause of action in the Amended Complaint to the extent it relates to a hostile work environment, pursuant to the NYCHRL, and the eleventh cause of action alleging a gender-based hostile work environment pursuant to the N YCHRL. Retaliation Under both the YSHRL and the NYCHRL it is unlawful to retaliate or discriminate against an employee for filing a discrimination complaint or otherwise opposing any practice prohibited by the statutes (Executive Law § 296 [7]; Administrati ve Code § 8-107 [7]). To establi sh a claim of unlawful retaliation under the NYSHRL, a plaintiff "must show that ( 1) she has engaged in protected activity, (2) her employer was aware that she participated in such activity, (3) she suffered an adverse employment action based upon her activity, and (4) there is a causal connection between the protected activity and the adverse action." (Forrest v Jewish Guild/ or the Blind, 3 NY3d at 3 12-3 13; see Fletcher v Dakota, Inc., 99 AD3d 43. 5 1 [l51 Dept 20 12]; Baldwin v Cablevision Sys. Corp. , 65 AD3d 96 1, 967 [15 1 Dept 2009]). " An adverse emp loyment action requires a materiall y adverse change in the terms and conditions of employment ... ~such as] ' a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished ti tle, a material loss of benefits, [or] significantly diminished material responsibilities . ... ' " (Forrest v Jewish Guild/ or the Blind, 3 NY3d at 306; see Messinger 10 11 of 13 [*FILED: 11] BRONX COUNTY CLERK 09/03/2019 10:16 AM NYSCEF DOC. NO. 30 INDEX NO. 25814/2016E RECEIVED NYSCEF: 09/03/2019 v Girl Scouts o.fU.S.A., 16 AD3d 3 14, 3 14-3 15 [ l51 Dept 2005]). "To be materially adverse, a change in workVig conditions must be ' more disruptive than a mere inconvenience or an alteration of job responsibilities.' " (id; Mejia v Roosevelt Is. Med. Assoc. , 95 AD 3d 570, 57 1 [151 Dept 2012]; Maller of Block v Gatling, 84 AD3d 445 [I 51 Dept 20 11 ). Under the more protecti ve NYCHRL, a retaliation cla im does not require "a materially adverse change in the terms and conditions of employment," but, instead, the alleged retaliatory acts need onl y '·be reasonably likely to deter a person from engaging in protected activity'. (Williams v New York City Hous. Auth., 6 1 AD3d at 71; Administrati ve Code§ 8-107 [7]). To establish primafacie a claim of retaliati on under the N YCHRL, a plaintiff must show that ( I) she participated in a protected activity known to defendants; (2) defendants took an employment action that disadvantaged the plaintiff; and, (3) a causal connection existed between the protected activity and the adverse employment acti on (see Fletcher v Dakota, Inc., 99 AD3d at 5 1-52). Although the First Department has cautioned that the YCHRL '·does not permit any type of challenged conduct to be categorically rej ected as nonactionable" (Williams v New York City Haus. Auth., 6 1 AD3d at 7 1). courts have continued to find that certain conduct is insuffi cient, as a matter of law, to support a retaliation claim, even under the broad NYCHRL standard (see Melman v Monte,ftore Med Ctr. , 98 AD3d 107, 129-130 [ l51 Dept 201 2]). ln this case, there is no a llegation that Zais played a role in plaintiff's employer' s decision to terminate her. Rather, the protected acti vity was that plaintiff made a complaint, which allegedly led to action by her employer which di sadvantaged plai ntiff. A lthough pl aintiff tries to connect Zais to the action, there are no facts asserted that Zais was invo lved in the decision. Thus, as to Zai s, the seventh, eighth, ninth , and twelft h causes of action for retaliation based on gender and race under the N YSHRL and NYCHRL are dismi ssed. 11 12 of 13 [*FILED: 12] BRONX COUNTY CLERK 09/03/2019 10:16 AM NYSCEF DOC. NO. 30 INDEX NO. 25814/2016E RECEIVED NYSCEF: 09/03/2019 Accordingly, plaintiff s motion to amend the Complaint is granted in part and denied in part. Plaintiff is granted leave to serve and file an Amended Complaint as to Zais containing only those claims that are not dismi ssed, on or before thirty days from the date of this Order. Zais ' s motion to dismiss is denied with respect to the first cause of action re lated to a racebased hostile work environment pursuant to the NYCHRL, and the e leventh cause of action relating to a gender-based hostile work environment. Zais·s motion is otherwi se granted dismissing the first cause of action re lating to a racebased hostile work environment pursuant to the YSHRL. the sixth cause of action for defamation per se, the second, third, fo urth and fifth causes of action alleging discrimination. pursuant to the NYSHRL and NYCHRL, and the seventh, eighth, ninth, and twelfth causes of action for retaliation based on gender and race under the N YSHRL and NYCHRL. Defendants shall serve and file their Answers, or otherwise move. pursuant to the CPLR. Upon joinder of issue, the parties are granted leave to pursue discovery with respect to the Amended Complaint. Plaintiff is directed to serve a copy of this Order with Notice of Entry on defendants within thirty days of the date of this O rder. This constitutes the Decision and Order of the court . Dated: August 29, 20 19 (LR£~ .;!=~ Ruben Franco. J.S .C. BON. RUBEN FRANCO 12 13 of 13

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