Russell v New York Univ.

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Russell v New York Univ. 2020 NY Slip Op 35215(U) June 12, 2020 Supreme Court, Bronx County Docket Number: Index No. 29210/2017E Judge: Howard H. Sherman 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. INDEX NO. 29210/2017E FILED: BRONX COUNTY CLERK 07/08/2020 10:51 AM NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 07/08/2020 NEW YORK SUPREME COU RT - COU TY OF BRONX SUPREME COURT OF THE STATE OF COUNTY OF BRONX EW YORK -----------------------------------------· -------------------------X Or. Suzan Ru sse ll , Index N2. 292 10/2017E Plaintiff, - aga inst ew York nivers ity, Jo eph 1. Thometz, Eve Meltzer, Fredric Schwarzbach , and Robert Squillance Defendants. Ho n. Howard H. Sherman , Justi ce Supreme Co urt --------------------------------------------------------------------X The following pape rs numbered _ _ to _ we re read on these motions (Seq. Nos. 6, 7) fo r di smissa l noticed o n _ _ _ and duly submitted as Nos. on the Motion Ca lendar of - - ---- !Sequence No. 6 Doc. Nos. No tice of Motion - Exhibits and Affidavits Annexed Cross Motion - Ex hibit and Affidavit Ann exed !Answering Affidavit and Exhibits, Memorandu m of Law 62-75 98-99 Reply Affidavit I OI Sequence No. 7 Doc. Nos . No tice of Motion - Exhibi ts and Affidavit s Annexed Cross Motion - Exhibits and Affidavits An nexed Answering Affidav it and Ex hibits, Memora ndum of Law Reply Affi davi t 76-84 96-97 102 Upon the forego ing paper the two epara te motion li sted above are decided in acco rdance w ith the annexed decision a nd order. Da~d: Hon.~ 7t)J_ June122020 _ _ _ _ __ HOWARD H. SHERMAN, J.S.C. I. CHECK ONE .... ... ..... .. .. ........ .. ..... ... .. ..... ... o CASE Dl POS ED IN ITS E TIRETY 2. MOTION IS ..... .. .... ................ .... ..... ... ... ... . o GRANTED 3. CHECK IF APPROPRIATE .... .... ......... ... . o SETTLE ORDER o FIDUC IARY [* 1] • DE !ED o GRANTED IN PART o SUBM IT ORDER PPOINTMENT 1 of 17 o CASE ST ILL ACTIVE • OTHER o SCHEDULE APPEARA o REFEREE APPOI TM ENT E FILED: BRONX COUNTY CLERK 07/08/2020 10:51 AM ... NYSCEF DOC. NO. 106 INDEX NO. 29210/2017E RECEIVED NYSCEF: 07/08/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ----------------------------------------------------------------------X Dr. Suzan Russe ll , Plai ntiff, DEC ISION and ORDER Index No. 292 l0/20 l7E - against ew York University, Josep h M. Thometz Eve Meltzer Fredric Schwarzbach, and Robe1t Squil lance, Defendan ts. ----------------------------------------------------------------------X Howard H. Sherman, J. Upo n the foregoing papers, the separate motions of the defendants for dismi ssal pursuant to CPLR 32 11 are decided as fo llows: Plaintiff Suzan M. Russell is a former adjunct facu lty mem ber in New York Uni versity's (" YU" or the "University") Libera l Studies Program . She al leges that the defendants based on the basis of her gender, sexual orientation religion, and age subjected her to discrimination and harassment, and that she suffered retaliation for engaging in activity protected by New York State and City di scrimination laws. The grava men of the cu rrent dispute is whether any of the claims pending in this action survive the earlier dismissal of a related federal action . This Cowt prev iously stayed this action pending determination of the appea l in the related federal action. (Order Sherman, J., Apri I 18, 2018). Facts and Procedural Historv Plaintiff became embroiled in a petty dispute with defendants Joseph M. Thometz ("Thometz") and Eve Meltzer ( 'Meltzer") in December 20 12 over comments made on an NYU li stserv. Thometz se nt a disparaging email to other faculty members in which he accused plaintiff of engaging in "di sorganized rants," stated that she was "clearly in crisis," and characterized her as [* 2] 2 of 17 INDEX NO. 29210/2017E FILED: BRONX COUNTY CLERK 07/08/2020 10:51 AM NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 07/08/2020 "'a mean-spirited person. " Thometz erroneously copied plaintiff on the email , which prompted a human resources complaint by plaintiff. The complaint was resolved amicably. In 2013 , Thometz and/or Meltzer another professor, al legedly began a secret campaign to harass plaintiff. In June 2013 , plaintiff began to receive unsolicited mail and email, some of which was pornographic . In addition, Thometz and/or Meltzer began to post comments on the Internet impersonating the plaintiff. This bizarre conduct a lleged ly ended on or about July 2013. The harassment was extensively investigated by NYU and the Manhattan District Attorney ' s office. ln March 20 15 plaintiff commenced an action in the Southern District of New York, in which plaintiff asserted claims against YU , Thometz and Meltzer under Tit le VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of l 972, the Age Discrimination in Employment Act the New York State Human Rights Law, and the New York City Human Rights Law. She also sought damages for intentional infliction of emotional distress. (Russe ll v. New York Univ ., 2017 U.S. Dist. LEXIS 111 209, aff'd 739 Fed. Appx. 28 , 2018 U.S. App. LEXIS 17138 [2d Cir. 2018)). Although Thometz initially denied that he was the source of the harassment, during a deposition conducted on April 15 , 2016, Thometz admitted that he had in fact "signed [plaintiff] up for random ' free stuff" and engaged in at least some on-line impersonation of the plaintiff. He explained that he did this in response to , or for the purpose of " mirroring" her behavior towards him (and other faculty) on the faculty listserv , in the hope of getting her to stop " spamming' the facu lty listserv and/or prompting NYU ' s adoption of certain policies regu lating the use of the Iistserv . During the pendency of the federal action , on October 9, 2015, plaintifrs employment was terminated. The stated basis for the termination was that despite warnings, plaintiff repeatedly contacted a witness in the federal action (another faculty member) in violation of an order of the federal court. 2 [* 3] 3 of 17 FILED: BRONX COUNTY CLERK 07/08/2020 10:51 AM NYSCEF DOC. NO. 106 INDEX NO. 29210/2017E RECEIVED NYSCEF: 07/08/2020 The defendants in the federa l action moved for summary judgment. The motion court first considered plaintiffs claims with respect to a hosti le work environment in violation of Title VIT and the ADEA. The court found that these cla ims failed because 'on the undisputed factual record presented to the Court no reasonable jury could find a sufficient basis to impute the alleged conduct to NYU ." (Id at *76- 77.) NYU provided a reasonable avenue for complaint three NYU depa1tments were involved in the ensuing investigation and the online impersonation and other conduct was committed using a personal computer from locations outside ofNYU. NYU offered to " filter" the offensive emails, and YU had no solid basis (other than plaintiffs speculation) to connect Thometz or Meltzer to the complained-of conduct unti l at least December 17, 2013 , when the DA ' s office interviewed Thometz. By the time Thometz admitted his involvement in April 2016, he was no longer employed by the Libera l Stud ies Program , and he discontinued all activities at NYU the next month. The court also found that NYU did not treat plaintiff differently with respect to her termination because of her membership in protected cla se , as she failed to present evidence that her terminat ion occurred under circumstances giving rise to an inference of discrimination. 1 The motion cowt similarly rejected claims for retaliation in violation of Title Vll , and claims for discrimination and retaliation pursuant to Title IX. The Court found that no exceptional circumstances existed warranting the exercise of supplemental jurisdiction over plaintiff s NY HRL and NYCHRL claims against the NYU defendants as well as Thometz and Meltzer and accordingly dismissed those claims without prejudice. On September 29, 2017, during the pendency of plaintiffs appeal, plaintiff commenced this action. On appeal to the econd Circuit, plaintiff challenged the district court's dismissa l of her hostile work environment claim against the YU Defendants pursuant to Title Vil and the ADEA, 1 An arbitrator found that the penalty of termination was too severe, but did not find that termination of plaintiff's emp loyment was motivated by any discriminatory or improper animus. 3 [* 4] 4 of 17 FILED: BRONX COUNTY CLERK 07/08/2020 10:51 AM NYSCEF DOC. NO. 106 INDEX NO. 29210/2017E RECEIVED NYSCEF: 07/08/2020 and the district court's dismissal of her Title V[ I retaliation claim against the NYU Defendants. The Second C ircuit affirmed the motion court's findings. Argument Defendants Thometz and Meltzer Defendants Thometz and Meltzer now move to dismiss the complaint pursuant to CPLR 321 l(a)(S) and (7) on the ground s of collateral estoppel, res judicata and the statute of limitations. Defendants maintain that although the federal court did not consider the plaintiff's claims under the NYSHRL and NYCHRL, the underly ing findings of fact may still preclude the state c laims. (Williams v New York City Tr. Auth., 171 A.D.3d 990 992 [2d Dept. 2019] [where a federa l court declines to exercise jurisdiction over a plaintiffs state law claims co llatera l estoppel may sti ll bar those claims provided that the federal court decided iss ues identical to those raised by the plaintiffs state claim s].) The defenda nts argue that because all of plaintiffs claims asserted in this action are barred by the prior federal determination, plaintiffs compla int as against Thometz and Meltzer must be di sm issed w ith prejudiced in its entirety. Defendants further argue that the present complaint is barred by the statute of limitations. They argue that any discriminatory or retaliatory acts that occurred before September 29, 2014, three years before the filing of the complaint herein, are barred by the applicable statute of limitations period under the NYSHRL and NYCHRL. Likewise, they argue that the intentional infliction of emotional distress claim is barred by the app licab le one -year statute of limitations period. Because Thometz, according to his own statement, allegedly ceased all activity w ith respect to plaintiff in July 2013, defendants argue that the NYSHRL and NYCHRL discrimination and retal iation claims based on race and disability, as well as her intentional infliction of emo tiona l distress claim, are time-barred in their entirety. For the foregoing reaso ns, defendants argue that 4 [* 5] 5 of 17 FILED: BRONX COUNTY CLERK 07/08/2020 10:51 AM NYSCEF DOC. NO. 106 INDEX NO. 29210/2017E RECEIVED NYSCEF: 07/08/2020 plaintiffs second and fifth causes of action for discrimination based on race and disability, second and sixth causes of action for reta liat ion , and tenth cause of act ion for intentional infliction of emotional distress must be dismissed pursuant to C PLR § 3211 (a)(5). 1n add ition defendants argue that under both the YSHRL and NYCHRL, individuals cannot be liable for di scrimination absent some showing that: ( I ) the individual was an employer; or (2) the individual aided and abetted a violation of the law committed by the employer. See Exec. Law § 296(1), (6); NYC Admin. Code § 8-107(6). Defendants argue that plaintiffs bare and unsupported legal conclusion in the comp laint that Thometz and Me ltzer were plaintiffs 'employers" is contrary to the findings of the fed eral court in the related act ion. Those assertions or the add itional assertions that these individual defendants aided a nd abetted NYU , defendants contend, are insufficient and require dismissal of the fir t, second, third fifth , sixth , seventh eighth and ninth causes of actions of the comp laint as aga inst Thometz and Me ltzer. Defendants further argue that plaint iff fai led to plead facts showing discriminatory intent. They argue that plaintiff fails to plead any facts demonstrating that the defendants' condu ct occurred as a consequence of plaintiffs alleged protected status, let alone that Thometz and Meltzer had knowledge of Plaintiff's age, race, religio n, gende r, sexua l orientation . Additionally , defendants argue that their conduct amounted to no more than petty s li g hts or trivial inconveniences. They argue that eac h of p laintiff's factua l underpinnings are insufficient , i.e.: • In suppo1t of her claim for age discrimination, plaintiff relies on her receipt of mailings from AARP, arthritis materials, incontinence pads, and vagina l lubricants; • With respect to her claim for empl oyment discrimination based on her Jewish religion/race, plaintiff relies on a certain internet posting, her al leged receipt of a Qur' an and certain mailings from vario us Ch ri stian organizations · 5 [* 6] 6 of 17 FILED: BRONX COUNTY CLERK 07/08/2020 10:51 AM NYSCEF DOC. NO. 106 • INDEX NO. 29210/2017E RECEIVED NYSCEF: 07/08/2020 As to anti-ga y animus , plaintif f asse1ts that Thome tz "outed her" by posting a stateme nt that plaintif f "fancie s" [anothe r female] J.M., and by causing plaintif f to receive gay pornogr aphy. Defend ants maintai n that these acts do not evince discrim ination based on disabili ty or gender. Similar to Plainti ffs discrim ination claims, defenda nts argue that plainti ffs retaliation claims (plainti ff's second and sixth causes of actions against Thome tz and Meltzer ) must be dismiss ed pursuan t to CPLR § 3211 (a)(7) as neither one of those individ uals particip ated in the adverse employ ment action, i.e. , plainti ffs termina tion. Plaintif f s eighth cause of action alleges that Thome tz and Meltzer interfer ed with protecte d rights. NYC Admin. Code § 8-107(1 9). Defend ants argue that plaintif f has failed to allege a specific protecte d right under the NYCH RL that Thome tz and Meltzer alleged ly interfered with or that Thomet z and Meltze r alleged ly took action on behalf ofNYU . Lastly, defenda nt' s contend that the intentional infliction of emotion al distress cause of action must be dismiss ed for failure to state a claim under CPLR § 3211 (a)(7), as the alleged conduc t did not constitu te "extrem e and o utrageo us conduc t ' sufficie nt to support the cause of action. Defend ants NYU, Fredric Schwar zbach and Robert Squilla ce (collect ively "NYU Defend ants") The NYU defenda nts similar ly move to dismiss pursuan t to CPLR 321 l(a)(S) and (7). T hey argue that the claims are barred by collater al estoppe l, and that the addition of Schwar zbach as an individu a l defenda nt or attempt s to re-label her causes action or include an addition al protected categor y, cannot sustain cogniza ble claims against any of the NYU Defend ants. Dismissal of Russe ll s NYSHR L and NYCH RL claims is warrant ed as plaintif f fails to allege any new facts that could suppo1t a claim that the NYU Defend ants mistrea ted her as a result of her gender, race 6 [* 7] 7 of 17 INDEX NO. 29210/2017E FILED: BRONX COUNTY CLERK 07/08/2020 10:51 AM NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 07/08/2020 disability, sexual orientation, or membership in another protected class, or took any actions based on a discriminatory or retaliatory animus. To the extent that plaintiff attempts to impose individual liabi li ty on Schwarzbach or Squillace as her purported 'employer" the NYU defendants argue that the complaint lacks any factual allegations that these individuals fall within the definition of "employer" under the NYSHRL or the NYCHRL, or that they encouraged, condoned or approved Thometz s or Meltzer's purported discriminatory conduct. (See, e.g., Doe v. Bloomberg, L.P. , 178 A.D.3d. 44, 48 [ I st Dept. 20 I 9)). Further, there is no allegation that either chwarzbach ' s or Squillace s engaged in harassing conduct, or created a hostile work environment. Plaintiffs arguments Plaintiff notes that the federa l court explicitly dismissed the plaintifrs NYSHRL and NYCHRL claims without prejudice, and did not engage in an analysis of any of plaintiffs state law claims. Because the federal court did not make any independent determination regarding the merits of plaintiffs state law discrimination claims, plaintiff argue these claims, which contain stronger safeguards against discriminatory conduct, should not be barred by collateral estoppel. Plaintiff maintains that she has properly alleged discrimination, hostile work environment and retaliation claims against defendants, based on having received pornographic and other materials to her mailbox -- things targeting her protected categories such as a Quran and various Christian material even though she is Jewish ; receiving pornographic material directed toward her sexual orientation; and finally , being sent incontinence materials and products because of her age. As to the NYU defendants, plaintiff argues that they failed to properly investigate the harassment, and terminated her based on improper motives. 7 [* 8] 8 of 17 FILED: BRONX COUNTY CLERK 07/08/2020 10:51 AM NYSCEF DOC. NO. 106 INDEX NO. 29210/2017E RECEIVED NYSCEF: 07/08/2020 With respect to the statute of limitations , plaintiff argues that 28 U.S.C. § 1367 specifically allows for a 30-day grace period follow ing dismissal of federal c laims for a plaintiff to file state law claims in state court (Art;s v. District of Columbia , 138 S. Ct. 594 [20 I 8]), and that the federal action tolls any other applicable statutes of limitations during the time that the case is pending in federal court. Plaintiff asserts that she has now specifically alleged in the complaint (contrary to the allegations in the federa l court) that defendant T hometz and Meltzer had supervisory power and was able to make personnel decisions within defenda nts organization , and therefore can be held fully liable as employers under both the NYSHRL and NYCHRL. But even assuming that Thometz and Meltzer had no supervisory power, p laintiff argues that co-workers as individual can be held personally liable for their own harassing conduct on an aiding and abetting theory. Plaintiff contends that the NYCHRL creates direct liab ility for employment discrimination not on ly against the employer, but also "an employee or agent thereof." N.Y.C. Admin. Code §8-107(I)(a). Thus plaintiff argues the NYCHRL provides for individual liability of an employee regardless of ownership or decision-making power. (Malena v. Victoria's Secret Direct, LLC 886 F.Supp.2d 349 366 [S.D.N. Y. 2012]). Plaintiff argues that this result obtains as we ll under the NYSHRL, and that under both statutes, the plaintiff must show that the individual defendant engaged in discriminatory or retaliato1y acts. (Stallings v. U.S. Elec. inc. , 270 A.D .2d 188, 707 N.Y.S.2d 9, IO [1st Dept. 2000)). ln other words, the status of the wrongdoer - whether he is a coworker, supervisor, owner, or other employee - is irrelevant when determining individual liability under the NYCHRL. (See, e. g. , Harrison v. Banque /ndo suez 6 F. upp .2d 224 at 233-234 ( 1998) ("defendant who actua ll y participates in the conduct that gives rise to a discriminat ion c laim may be held personally liable under the HRL regardless of the defendant's status in the corporation"); Williams v. City of New York, 2006 WL 2668211 , at *25 -26 (E.D.N.Y 2006) (defendant liable "even though coworker 8 [* 9] 9 of 17 FILED: BRONX COUNTY CLERK 07/08/2020 10:51 AM NYSCEF DOC. NO. 106 INDEX NO. 29210/2017E RECEIVED NYSCEF: 07/08/2020 lacked the authority to either hire or fire the plaintiff."). Similarly the liability of the employer is irrelevant under the NYCHRL. (See, e.g. , Falbaum v. Pomerantz 891 F.Supp. 986, 993 [S.D.N .Y. 1995] [allowing individual liability although no claims against employer asserted); Maloffv. City Commission , 46 N.Y.2d 902, 904 [ 1979] [finding harasser individua lly liable for damages] ; N.Y.C. Local Law No. 85 of 2005, § I (Oct. 3, 2005) (Restoration Act) ; Gurian, A Return to Eyes on the Prize: Litigating Under the Restored New York City Human Rights Law, 33 Fordham Urb. L.J. 255 , 274 & 297 [Jan. 2006] [stating that, after 2005 Restoration Act, there should be no doubt as to whether NYCHRL provides for individual employee liabi li ty]). Plaintiff also argues that she has stated a claim for interference with a protected right, a plaintiff must show coercion, intimidation, threats or inte1ference in her exercise or enjoyment of a right. (Nieblas-love v. New York City Hou ·ing Authority, 165 F. Supp. 3d 51 78 [S.D.N.Y. Feb. 26, 2016] [citing N.Y.C. Admin. Code§ 8-107[9]). Additionally where a court has found that plaintiff "plausibly al leged di sc rimination o r retaliation claims, a claim for unlawful interference under the YCHRL, 'as a further extension of these claims, ... should not be dismissed outright without the benefit of further judicial proceedings." (Parker v. Workmen's Circle Center of the Bronx, Inc. , 2015 WL 5710511 , at* 7 (S .D.N.Y. Sept.29,2015) (denying the defendants' motion to dismiss plaintiffs' NYCHRL claims). Plaintiff further argues that the individual defendants created a hostile work environment and engaged in discrimination. With respect to defendant Meltzer the complaint alleges that she had personal knowledge of what was being sent to plaintiff, and was a participant in thi s conduct. Fwther the complaint expressly alleges that the mail that p laintiff was rece iving was original ly generated from defendant Meltzer' s computer thereby properly alleging that defendant Meltzer was an active participant in the discriminatory and harass ing conduct that plaintiff was subjected to and therefore she should not be dismissed from the case. 9 [* 10] 10 of 17 FILED: BRONX COUNTY CLERK 07/08/2020 10:51 AM NYSCEF DOC. NO. 106 INDEX NO. 29210/2017E RECEIVED NYSCEF: 07/08/2020 Lastly, pla inti ff argue that defendant Thometz and Me ltzer c learly engaged in outrageous and extreme conduct, so as to go beyond all poss ible bounds of decency thereby alleging intentional inflictio n of emotiona l di stress. Discussion NYU Defendants The NYU defendants correctly demonstrate that the factua l detenninations underlying the federa l co urt 's findin gs col laterall y estopp the plaintiff from asserting new factual theories which co nfl ict with the prior determination s. "Where a federa l court decl ines to exercise jurisdictio n over a plaintiff state law c laims, co llateral estoppel may still bar those claims provided that the federal court decided issues id entical to those ra ised by the pla intifr s state c la ims" (Milione v City Univ. of NY 153 AD3d 807, 808 -809 59 NYS3d 796 (20 17].) T hi s reasoning has been app li ed in th e co ntext of emp loy ment discriminat io n act ions even where the plaintiff seeks redress und er the more liberal standards of the NYCHRL. For example, in Williams v New York City Tr. Auth. ( 171 A.D .3d 990 993 , 97 N .Y .S.Jd 692, 696 [2d Dept. 20 19]) the Second Department concluded : 'Here, the [federal] District Co urt determined that the defendants had legitimate nondi scri m inatory reaso ns for their employment action ; that the defendants were not mot ivated by reta liatory animus; that the reasons for the defendants' employment actions were not a pretext for discrimination; and that the plaint iff was not treated different ly from other emp loyees. Thus, even under the broader sta ndard of the NYCHRL, th ose detenn inat ions nonetheless require di smi ssa l of the plaintifrs ca uses of action." In the present case, as in Williams v New York City Tr. Auth. , the factual findings of the fede ra l district court preclude any cla im aga inst the NYU defendants. conc luded factual ly that the The fe deral di strict court Y U defenda nts exhaustive ly investi gated the harass ment by the ind ividua l defend ants, that the N YU defendants we re not were not awa re of and d id not participate in the harassment that they took reaso nab le action to address the claims. Further, the decision to 10 [* 11] 11 of 17 FILED: BRONX COUNTY CLERK 07/08/2020 10:51 AM NYSCEF DOC. NO. 106 INDEX NO. 29210/2017E RECEIVED NYSCEF: 07/08/2020 terminate was devoid of any discriminatory motivation , as supported by the arbitrator's finding that plaintiff engaged in serious misconduct, albeit the arbitrator found that the penalty was excessive. The NYCHRL imposes strict li ability on an "employer" for the discriminatory acts of the managers and supervisors. (See Administrative Code of the City of New York§ 8-107[13][6][1] · Zakrzewska v New School, 14 Y3d 469, 480-481 928 N.E.2d 1035, 902 N.Y.S.2d 838 [2010]). The federal District Court in the related federal action , in its affirmed findings , specifica ll y found that neither Thometz nor Meltzer performed any supervisory role over the plaintiff, and that they were solely co-workers. This crucial factual finding may not now be overturned by plaintiff's conclusory assertions that defendant Thometz and Meltzer had supervisory power over her and were able to make personnel decisions within the NYU organization . Plaintiff is collaterally estopped from making these factual arguments which conflict with the federal court's resolution of factual issues identical to those raised here. (Milione v City Univ. of New York, 153 AD3d 807, 59 N.Y.S .3d 796 [2d Dept. 2017], Iv denied 30 NY3d 907, 70 N.Y.S.Jd 447, 93 N.E.3d 1212, cert denied 138 S. Ct. 2027, 20 I L. Ed. 2d 278 [2018]). The factua l findings made by the federal cou1t as to any of the elements of the NYSHRL and NYCHRL claims asserted here have a µreclusive effect. (See Hudson v Merrill Lynch & Co., Inc. , I 38 A 03d 51 I, 3 I N. Y .S.3d 3 [ I st Dept. 2016] , Iv denied 28 NYJd 902 40 N.Y.S.3d 350, 63 .E.3d 70 [plaintiffs precluded by federa l court opinion from relitigating discrete factual issues decided against them in federal action- federal court found no evidence that male employees treated differently than female plaintiffs, or that males were provided better mentoring and opportunities]). In Milione v City Univ. of New York (supra) the plaintiffs discrimination claims under the YCHRL were held to have been properly dismissed as the federal court in the federa l discrimination action before it had determined that the defendants had legitimate, nondiscriminatory reasons for their employment actions, they were not motivated by racial animus, their reasons were 11 [* 12] 12 of 17 FILED: BRONX COUNTY CLERK 07/08/2020 10:51 AM NYSCEF DOC. NO. 106 INDEX NO. 29210/2017E RECEIVED NYSCEF: 07/08/2020 not a pretext for discr imination, and the plaintiff was treated no differently than other emp loyees. The federal decision was thus dispositive of the plaintiffs state and city Human Rights Law claims even under the "broader standard" of the YCHRL, and the plaintiff was thus col laterally estopped from relitigating those claims. (S up ra 153 AD3d 807 at 809.) Under the NYCHRL, a plaintiff need not show that instances of conduct resulting in a hostile work env ironment were severe and pervasive, but on ly that she experienced disparate or unequa l treatment on accou nt of a protected characteristic. (Hernandez v Kaisman , I03 AD3d 106, 957 N.Y.S.2d 53 ( I st Dept.2012].) The conduct or instances of such animus must, moreover, result in more than a "petty slight or triv ial inconvenience." (ld at 115.) This Court is requi red under its collateral estoppel analysis to apply the factual find ings of the federal court in evaluating plaintiff's claims of di crim ination and disparate treatment under the more li beral analysis of the City Human Right Law (Administrative Code of City of NY§ 8-107). As stated in Johnson vlAC/JnterActiveCorp ( 11 8 .Y.S.3d 561 563 , 2020 .Y. App . Div. LEXIS 5 18, * 1-2 [I t Dept. 2020]): "The motion cou rt con-ect ly held that co llateral estoppel app li ed to issues of fact in this state action that are identical to issues of fact necessarily resolved by the United States District Co urt for the Southern District of New York in granting summary judgment di sm i.ss ing plaintiffs federal employment di scrimination claims (see Simmons-Grant v Quinn Emanuel Urquhart & Sullivan, LLP, 11 6 AD3d 134, 140,98 1 .Y.S.2d 89 [1st Dept 2014]' Sanders v Grenadier Realty, In c. 102 AD3d 460, 46 1, 958 N.Y.S.2d 120 [1st Dept 2013]). In app lying collateral estoppel to such purely factual issues, the motion court properly eva luated plaintiffs claims of discrimination and disparate treatment under the more liberal ana lysis of the City Human Ri ghts Law (Adm inistrative Code of City of NY § 8-107) and did not conflate it with the federal analys is (W ill iams v New York City Hous. Auth., 6 1 AD3d 62,872 N .Y.S.2d 27 [I t Dept 2009], Iv denied 13 NY3d 702 [2009]; see Adm in istrative Code§ 8-130). The court cited the app licable "mixed motive standard" under the City HRL (Hudso n v Merrill Lynch & Co. , Inc., 138 AD3d 511 , 514, 31 N.Y.S.Jd 3 [1 st Dept 2016], Iv denied 28 NY3d 902 [2016]; Williams, 6 1 AD3d at 78, n 27), and correctly concluded that plaintiff failed to raise a triable issue of discrimination based on the termination of her emp loyment or any disparate treatment. " 12 [* 13] 13 of 17 FILED: BRONX COUNTY CLERK 07/08/2020 10:51 AM NYSCEF DOC. NO. 106 INDEX NO. 29210/2017E RECEIVED NYSCEF: 07/08/2020 In an action brought under the NYCHRL , on a motion for sum mary judgment the inquiry must be analyzed both under the framework set forth in McDonnell Douglas Corp. v. Green (41 I U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 [ 1973]) as well as the "mixed-motive" framework recognized in certain federal cases. (Melman v Montefiore Med. Ctr. , 98 A.D.3d I 07 113 946 N.Y.S.2d 27, 30 [I st Dept. 2012].) The federal court has already applied the McDonnell Douglas analysis in dismissing plaintiff's claims. Under a "mixed-motive' analysis, plaintiff should prevail in an action under the NYCHRL if he or she proves that unlawfu l discrimination was one of the motivating factors, even if it was not the sole motivating facto r, for an adverse employment decision (see Williams v New York City Haus. Auth. , supra, 61 AD3d 62, 78; Melman v Montefiore Med. Ctr. , supra, 98 A.D.Jd 107, 127 [1st Dept. 2012].) Rev iewing the case under a " mi xed-motive" framework, no basis ex ists for a finding that unlawful discrimination was the basis for an adverse employment decision . Under both the State and City Human Rights Laws, it is unlawful to retaliate against an employee for opposing discriminatory practices. ' (Forrest v. Jewish Guild/or the Blind 3 N.Y.Jd 295 , 310 [2004]). To establish unlawful retaliation, plaintiff must show that she engaged in protected activity, her employer was aware that she participated in such activity, she suffered an adverse employment action based upon hi s protected activity and the existence of a causal connection between the protected activity and the adverse em ployment action. When a defendant moves for summary judgment dismi ss ing a cause of action alleging retaliation 2 under either the NYSHRL or the NYCHRL "'[the] defendant must demonstrate that the 2 Pursuant to the NYCHRL a plaintiff need not establish that the alleged retaliation or discrimination resulted in an ultimate action with respect to employment or in a materially adverse change in the terms and conditions of employment so lo ng as the retaliatory or discriminatory act was reasonabl y likely to deter a perso n from engaging in protected activity. (Ananiadis v Mediterranean Gyros Prods., Inc. 151 A.D.Jd 915 , 918-919, 54 N.Y.S.3d 155, 159-160 [1st Dept. 13 [* 14] 14 of 17 FILED: BRONX COUNTY CLERK 07/08/2020 10:51 AM NYSCEF DOC. NO. 106 INDEX NO. 29210/2017E RECEIVED NYSCEF: 07/08/2020 plaintiff cannot make out a pnma facie claim of retaliation or, having offered legitimate nonretaliatory reasons for the challenged actions, that there exists no triable issue of fact as to whether the defendant's explanations were pretextual' " (Delrio v City of New York, 91 AD3d 900, 901 938 NYS2d 149 [2012] .) The factual findings of the federal court make clear that no pretext or retaliatory animus existed for the termination of plaintiffs employment. The plaintiff cannot now alter these factual findings by naming additional NYU employees or by asserting contrary factual theories. For the reasons stated above and based on the arguments of he NYU defendants, the complaint as to these defendants is dismissed. Defendant Thometz and Meltzer Plaintiff seeks to hold the individual defendants Thometz and Meltzer liable under various theories. With respect to "aiding and abetting" discrimination under the NYCHRL however, as the claims against the NYU defendants are dismissed any claim against these defendants as an aider and abettor of the employer's allegedly discriminatory conduct fails as a matter of law. (See, e.g. , A be v Cohen , 115 AD3d 491 , 492, 981 N.Y.S.2d 692 (1st Dept. 2014) ["[Defendant] cannot be held liable for aiding and abetting an act which itself is not actionable"]). Nor can Thometz and Meltzer cannot be held liable for aiding and abetting their own alleged discriminatory conduct. (See Hardwick v Auriemma 116 AO3d 465 , 983 .Y.S.2d 509 [1st Dept. 20 I 4]). Plaintiff postulates that the per on committing the harassment is responsible for the unlawful conduct. While it would be logical to hold a fellow employee responsible for acts of harassment, '[t]here is no indication in the local ordinance, explicit or implicit that it was intended to afford a separate right of action against any and all fellow employees based on their independent and unsanctioned contribution to a hostile environment. The inclusion of the word "employee" in the 2017].) 14 [* 15] 15 of 17 INDEX NO. 29210/2017E FILED: BRONX COUNTY CLERK 07/08/2020 10:51 AM NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 07/08/2020 local ordinance does not automatically open the door of liability to an entirely new categmy of defendants· the term must be read in context." (Priore v. NY Yankees 307 A.D .2d 67, 74, 761 N.Y.S.2d 608, 614 [1st Dept. 2003]' see Matter of Medical Express Ambulance Corp. v Kirkland 79 A.D.3d 886, 888, 9 13 N.Y.S.2d 296, 299 [2010].) It is well settled that an emp loyee who did not participate in the primary vio lation itself but who aided and abetted that conduct, may be individually liable based on those actions under both the NYSHRL and the NYCHRL. (See Executive Law§ 296 [6]' Admin istrative Code § 8- 107 [6]). Bothe the NYSHRL and the NYCHRL provide that it is "an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts fo rbidden [thereunder], or to attempt to do so." (Exec utive Law§ 296 [6] ; Administrative Code§ 8-107 [6]). A defendant who provides assistance to the indiv idual or individuals participating in the primary violation may be found liable for a iding and abetting discriminatory conduct (see Jews for Jesus v Jewish Community Relations Council of NY. , 79 Y2d 227, 233,590 N E2d 228, 581 YS2d 643 [1992]). These theories of liab ility however, have been directed at supervisors who fai l to take adequate remedial measures in view of discrimination. Thus supervisors who fail to conduct a proper and tho rough investigation , o r to take remedial measures upon a p laintiffs complaint of discriminatory conduct are subject to liability on an a id ing and abetting theory (A naniadis v Mediterranean Gyros Prods., Jnc., l51A.D.3d915 , 9 17-918, 54 .Y.S.3d 15 5 l 58- 159[1stDept.2017].) Contrary to plainti ffs arguments, however, co-workers who engage in discriminatory conduct who have no role in superv ision or terms of employment are not liab le under the NYCHRL or the NYSHRL. (Priore v. NY Yankees, supra, 307 A.D.2d 67, 74, 761 N.Y.S.2d 608, 614 [1st Dept. 2003]; see also, Montgomery v ELRAC, Enter. Holdings, inc., 2019 N.Y. M isc. LEXIS 5282, 2019 NY Slip Op 32896(U) [Sup Ct. Bronx Co un ty [Franco J.] [liability of fellow emp loyee under NYCHRA requires some superv isory ro le]; Palmer v Cook, 2019 15 [* 16] 16 of 17 .Y. M isc. LEXIS 430 1 *9, 2019 INDEX NO. 29210/2017E FILED: BRONX COUNTY CLERK 07/08/2020 10:51 AM NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 07/08/2020 NY Slip Op 5 I 228(U) [Sup Ct. Queens Co.] [plaintiff cannot sustain a cause of action against coemployee without supervisory authority] .) To the extent that Malena v. Victoria's Secret Direct, LLC (886 F.Supp.2d 349, 366 [S.D.N. Y. 2012]) suggests that a co-worker may be directly liable for discrimination, that holding is contrary to Priore v. N. Y Yankees (supra .). There is according ly, no basis to hold these defendants liable under either State or City discrimination laws. The alleged conduct does not constitute conduct so outrageous that it constitutes intentional infliction of emotiona l distress . (Conklin v Laxen, 118 N.Y .S.3d 893 , 897-898, 2020 N.Y . App. Div. LEXIS 979, *7 [2d Dept. 2020] [alleged conduct of could not be deemed "so outrageous in character, and so extreme in degree, as to go beyond a ll possib le bounds of decency, and to be regarded as atrocious, and utterly into lerable in a civilized community ," citing Chanko v American Broadcasting Cos. Inc., 27 NY3d 46, 56, 29 N.Y .S.3d 879, 49 N .E.3d 1171 [2016] .) Accordingly, it is hereby, ORDERED that the respective motions are granted, and the complaint is dismissed . This is the Decis ion and Order of the Court. Dated : June 12 2020- - - - -- Howard H. Sherman , J.S.C. 16 [* 17] 17 of 17

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