Black v ESPN, Inc.Annotate this Case
Decided on February 19, 2021
Supreme Court, New York County
Devyn Black, Plaintiff,
ESPN, Inc., NEP BEXEL, INC., NEP IMAGE GROUP, LLC, RUSSELL FISHER, and DAVID GLASS, Defendants.
Plaintiff Devyn Black by Andrew C Laufer, Esq.
Defendant ESPN, Inc. by Misty D. Marris, Esq. & John Tyler Mills, Esq.
Defendant NEP BEXEL, Inc. by Misty D. Marris, Esq. & John Tyler Mills, Esq.
Defendant NEP IMAGE GROUP, LLC by Misty D. Marris, Esq. & John Tyler Mills, Esq.
Defendant Russel Fisher by Misty D. Marris, Esq. & John Tyler Mills, Esq.
Defendant David Glass by Misty D. Marris, Esq. & John Tyler Mills, Esq.
David Benjamin Cohen, J.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 42, 43, 44 were read on this motion to/for DISMISSAL.
Plaintiff Devyn Black ("Plaintiff"), a "back-up stage manager," filed this employment discrimination suit alleging, inter alia, that the above-named Defendants ("Defendants") discriminated and retaliated against him on the basis of his disability in violation of Sections 290-297 of the New York State Human Rights Law ("NYSHRL") and Title 8, Chapter 1, § 8-107 of the New York City Human Rights Law ("NYCHRL"). Defendants move, pursuant to CPLR 3211(a)(7), for an order dismissing the Complaint in full for failure to state a claim. Plaintiff opposes the motion and cross-moves for an order (1) amending the Complaint to assert [*2]additional causes of action, and (2) deeming the proposed Amended Complaint (Doc. 40) served upon Defendants. Defendants oppose the cross motion. For the reasons below, Defendants' motion to dismiss is denied, and Plaintiff's cross motion is granted.
I. Factual Background
On November 16, 2018, Defendants, "who are in the business of televising sports events and news to the general public[,]" hired Plaintiff as a camera operator and subsequently promoted him to the position of a "back-up stage manager" (Doc. 35 ¶ 5; Doc. 40 ¶¶ 4, 5).
In November 2019, Plaintiff's immediate supervisor, defendant David Glass ("Glass"), asked Plaintiff, in front of "numerous people" at work: "What's wrong with your skin?" (Id. ¶ 6). Plaintiff responded that he suffered from a medical condition and, at a later date, asked Glass to be assigned to work in a warmer studio due to his skin condition (Id. ¶¶ 6, 8). In response, Glass asked Plaintiff for a doctor's note demonstrating that his medical condition would worsen in cold environments (Id. ¶ 9). Plaintiff obliged and delivered said note to Glass (Id.). The note, by Julie Kuriakose, MD, who has a specialty in adult and pediatric allergy and immunology, provided, in relevant part, that:[Plaintiff] has a history of Allergic Rhinitis, [and] Allergic Conjunctivitis. He also has a history of Vasomotor and Non-Allergic Rhinitis. His triggers include cold air, cold temperatures, and air conditioning along with multiple airborne allergens. At this time, I recommend that [Plaintiff] avoids his triggers, both at home and at work, to prevent his medical conditions from being exacerbated.
However, Glass continued to assign Plaintiff "to work in cold studios" (Doc. 1; see also Doc. 35 ¶ 9).
Plaintiff was subsequently approached by defendant Russell Fisher ("Fisher"), a stage manager, who told Plaintiff, twice within the same day, that he was sent to "keep an eye on someone in [the] studio" (Doc. 40 ¶¶ 10-13). For the next three days, Fisher "repeatedly yell[ed] at [Plaintiff] for various tasks which were not relevant to his job or their production and no other employees were treated in the same manner" (Id. ¶ 14).
Plaintiff reported Fisher's conduct to Glass, who stated that "he didn't like the way [Plaintiff], and not Fisher was reacting" and "directed [Plaintiff] to complete a work ethics class online" (Id. ¶¶ 15-19).
Subsequently, starting on or about January 2020, Fisher began "bumping into and striking [Plaintiff] with his body, arms, and shoulder" (Id. ¶¶ 20-21). Plaintiff "repeated [his] complaints to [Defendants] about these attacks until February 27, 2020[,]" on which date he was terminated (Id. ¶ 23).
Plaintiff, Fisher, and Glass were all employed by one or more of the co-Defendants (see Doc. 35 ¶ 11 ["[Plaintiff] was approached by Russell [who] told that he was appointed by the company to 'keep an eye on someone in the studio.'"][emphasis added]; see also Doc. 40 ¶¶ 1, 25-30).
II. The Parties' Contentions
Defendants proffer three main arguments in support of the instant motion. First, Defendants argue that Plaintiff fails to plead a hostile work environment claim under the [*3]NYSHRL and NYCHRL because: (1) he has failed to allege that he is a member of a protected class; (2) he has alleged nothing more than non-actionable petty slights and trivial inconveniences; and (3) he has failed to plead a causal connection between the protected trait and the alleged adverse action. In opposition, Plaintiff argues, inter alia, that "within his affidavit and complaint, [he] list[ed] a litany of instances [in which] he was punished, intimidated, assaulted, ignored, denied a reasonable accommodation for his illness and fired" (Doc. 34 ¶ 25; see also Doc. 35).
Second, Defendants argue, inter alia, that Plaintiff fails to plead a retaliation claim under the NYSHRL and NYCHRL because: (1) he has failed to allege that he was engaged in a protected activity; and, (2) even assuming he has alleged that he was engaged in protected activity, he nevertheless has failed to plead a causal connection between the alleged protected activity and his termination. In opposition, Plaintiff argues that he has "clearly demonstrated a relationship between his request for an accommodation for his medical condition, the defendants' refusal to afford that accommodation, and the subsequent retaliation he suffered as a result of his request (Doc. 34 ¶ 47).
Third, Defendants argue that Plaintiff has failed to plead a claim against Fisher and Glass because he does not sufficiently plead that they acted with, or on behalf of, Plaintiff's employer in hiring, firing, paying, or in administering the terms, conditions, or privileges of Plaintiff's employment. In opposition, Plaintiff argues that they "were both instigators and aided and abetted in the retaliation and discriminatory conduct" and "both admitted through their conduct that they had the ability to affect the terms and conditions of [his] employment" (Doc. 34 ¶¶ 59, 60).
In further support of their motion, Defendants reiterate, inter alia, that Plaintiff has failed to allege that Fisher's conduct was in any way related to Plaintiff's medical condition, that "arguments regarding the timeline of events or the context of allegations cannot save this claim from dismissal[,]" and that none "of the conduct complained of was motivated in any manner whatsoever by a discriminatory animus" (Doc. 44).
Plaintiff cross-moves for an order (1) amending his Complaint to assert additional causes of action for disability discrimination, and assault and battery, and (2) deeming the proposed Amended Complaint served upon Defendants (Doc. 38; see also Pl's Ex. B, Doc. 40 [Am. Compl]). Plaintiff alleges assault and battery claims against Fisher, specifically asserting that he was placed in fear and apprehension of harmful and offensive contact with bodily harm from January 2020 until his termination at the end of February 2020 (Doc. 40 ¶¶ 71, 76). In opposition to the cross motion, Defendants argue, inter alia, that "[t]he mere act of bumping into someone, particularly in a television studio where close contact is extremely likely and common, certainly cannot be considered actionable for purposes of a claim for civil assault or battery" (Doc. 44).
III. Discussion & Legal Conclusions
A. Amendment of the Complaint
As a threshold matter, this Court grants Plaintiff leave to amend the Summons and Complaint. "Leave to amend a pleading should be freely given as a matter of discretion in the absence of prejudice or surprise" (Cafe Lughnasa Inc. v A & R Kalimian LLC, 176 AD3d 523, 523 [1st Dept 2019] [internal quotation marks and citations omitted]). "However, leave will be [*4]denied where the proposed amendment lacks merit or would serve no purpose other than to needlessly complicate and/or delay discovery and trial" (Id. at 523 [internal quotations and citations omitted]).
This Court grants the branch of the cross motion seeking leave to amend the Complaint to allege further causes of action of disability discrimination against all Defendants as well as of assault and battery against Fisher, and deeming the Amended Complaint served upon Defendants. This Court finds that Plaintiff's proposed amendments are not devoid of merit and will not prejudice or surprise Defendants.
B. Legal Standard for a Motion to Dismiss
On a motion to dismiss under CPLR 3211(a), the pleadings are afforded a liberal construction and the facts as alleged in the complaint are accepted as true. Moreover, the plaintiff is to be accorded the benefit of every possible inference (Hsu v Liu & Shields LLP, 127 AD3d 522, 523 [1st Dept 2015] [internal citations omitted]). Thus, in a determination of legal sufficiency under 3211(a)(7) for failure to state a cause of action, the facts alleged in the complaint will be assumed to be true, given all favorable inferences, and only then considered to see if they fit "within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 ).
"In addition, employment discrimination cases are themselves generally reviewed under notice pleading standards. [I]t has been held that a plaintiff alleging employment discrimination need not plead specific facts establishing a prima facie case of discrimination but need only give fair notice of the nature of the claim and its grounds" (Vig v New York Hairspray Co., L.P., 67 AD3d 140, 145 [1st Dept 2009] [internal quotations and citations omitted]). Further, under CPLR 3211 (a)(7), a court may consider affidavits and other evidentiary material submitted by the plaintiff to remedy any defects in the complaint and "the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (Leon v Martinez, 84 NY2d 83, 88  [internal quotations and citations omitted]; see also Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159, 162 [2d Dept 1997]).
C. First Cause of Action (Disability Discrimination)
1. The NYSHRL
The NYSHRL broadly prohibits discrimination by an employer on the basis of, inter alia, disability. In order to state a cause of action for disability discrimination under the NYSHRL, 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, 147 [1st Dept 2009]; see also Hosking v Mem. Sloan-Kettering Cancer Ctr., 186 AD3d 58, 61 [1st Dept 2020]).
The Executive Law of the State of New York Section 296(1)(a) provides, in relevant part:It shall be an unlawful discriminatory practice for an employer because of an individual's disability to discriminate against such individual in terms, conditions or privileges of employment.
(NY Exec. L. § 296[a]).
The NYSHRL defines "disability" 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" (Id. § 292).
The NYSHRL limits the term "disability" "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 . . . held" (Executive Law § 292 ).
Reasonable accommodation "means actions which permit an employee with a disability to perform in a reasonable manner the activities involved in the job or occupation sought or held and include, but are not limited to, provision of an accessible worksite, acquisition or modification of equipment, . . . job restructuring and modified work schedules; provided, however, that such actions do not impose an undue hardship on the business, program or enterprise of the entity from which action is requested" (Executive Law § 292 [21-e]; see also Hosking, 186 AD3d at 62).
For purposes of this statute, an "employer" is only required to have four or more employees (Id. § 292).
Provided the "employer" definition is satisfied, the NYSHRL allows for suits to be maintained against an employee for direct or aider-and-abettor liability (Id. § 296; see also Vera v Donado Law Firm, 2019 WL 3306117, at *7 [SDNY June 19, 2019], report and recommendation adopted, 2019 WL 3302607 [SDNY July 23, 2019]).
"A direct claim is possible against a firm's employee, if he or she was a supervisor with direct operational control over the plaintiff's work conditions and the power to make relevant hiring and firing decisions" (Vera, 2019 WL 3306117, at *7 [emphasis added]).
In addition to direct liability, the NYSHRL provides for individual aider-and-abettor liability. The Executive Law of the State of New York Section 296(6), provides, in relevant part: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 to attempt to do so.
(NY Exec. L. § 296). On an aider-and-abettor claim, "[i]t is the employer's participation in the discriminatory practice which serves as the predicate for the imposition of liability on others for aiding and abetting" (Vera, 2019 WL 3306117, at *8 [internal quotations and citations omitted]). "Moreover, in order for aider-and-abettor liability to be established, the defendant must be found to have actually participated in the conduct giving rise to the claim of discrimination" (Id. [internal quotations and citations omitted]).
For the purposes of the instant motion, Plaintiff has sufficiently pleaded that he is disabled within the meaning of the NYSHRL with impairments, inter alia, to his skin and breathing (see Cooney v City of New York Dept. of Sanitation, 127 AD3d 629, 630 [1st Dept 2015]; Wagner v Cty. of Nassau, No. 11-CV-1613, 2014 WL 3489747, *5 [EDNY July 11, 2014]; see also Sorge v Gona Realty, LLC, 188 AD3d 474, 474-75 [1st Dept 2020]). Plaintiff has specifically pleaded that "[w]hen he has a flare up, he becomes overwhelmed with congestion, running nose, skin rashes, swelling of the eyes, and other symptoms that make it difficult for him to work" (Doc. 40 ¶ 7). Further, Plaintiff's ailments, as noted in the doctor's note, suggest that environmental allergies may affect Plaintiff's respiratory airways (Doc. 37). [*5]Further, Plaintiff has pleaded that he was qualified to perform his job duties and, in fact, was promoted, showing that he could perform the duties of his job in a warm studio (Id. ¶ 5).
Further, while Plaintiff has not pleaded the number of employees employed by Defendants, the Court can discern from his allegations that Defendants did employ at least four people during certain periods of Plaintiff's employment (Id. ¶¶ 6 [Glass asked [Plaintiff], in front of numerous people ], 10 [Fisher began a vicious campaign of harassment against Plaintiff]).
Further, Plaintiff's pleadings give rise to a reasonable inference that his termination was discriminatory. Glass initially asked Plaintiff what was wrong with his skin. When Plaintiff explained his medical condition and requested accommodation for his disability, this request "angered" Glass, who ignored or refused to accommodate Plaintiff for his disability, and, subsequently, refused to intervene when Fisher, who was sent to "keep an eye on someone," verbally and physically began to attack Plaintiff (Doc. 35). Although Plaintiff did not provide more details about his later complaints regarding Fisher's continued conduct, he alleged that he continued to complain about the said conduct until he was terminated (Id.; see also id. ¶ 25).
Further, Plaintiff's pleadings are sufficient for individual liability against Fisher and Glass under the NYSHRL and NYCHRL. While Plaintiff has not pleaded that either Fisher or Glass had the authority to hire or fire employees and, therefore, neither can be directly liable under the NYSHRL, Plaintiff, nevertheless, has sufficiently alleged, as noted above, that both Fisher and Glass participated in the discriminatory conduct and therefore can be individually liable under the NYSHRL and NYCHRL (Vera, 2019 WL 3306117, at *8).
Further, there are allegations in the Amended Complaint that Glass and Fisher were in a position to—but failed to—intervene or investigate that conduct or take remedial action (Pellegrini v Sovereign Hotels, Inc., 740 F Supp 2d 344, 356 [NDNY 2010]). In fact, Plaintiff reported Fisher's conduct to Glass, Plaintiff's immediate supervisor, who failed to take remedial action (Doc. 40 ¶¶ 15-20). It can also be reasonably inferred that Fisher, "a stage manager" who was sent to keep an eye on someone, had some supervision over Plaintiff, who was a "back-up stage manager" (Id. ¶¶ 5, 10).
Lastly, in footnote 3 of their Reply Affirmation, Defendants argue that Paragraph 15 of the Amended Complaint raises serious concerns as to the veracity of Plaintiff's allegations (Doc. 44 at 12). Paragraph 15 of the Amended Complaint provides, in relevant part:"Plaintiff inquired whether this maltreatment was a result of his disability or accommodations request. (check with client)"
(Doc. 40 ¶ 15 [emphasis added]). Contrary to Defendants' argument, the amended paragraph is not "palpably insufficient or clearly devoid of merit[,]" (Sorge v Gona Realty, LLC, 188 AD3d 474, 474-75 [1st Dept 2020]), but rather contains an oversight, i.e., the above emphasized annotation, by the attorney for Plaintiff.
2. The NYCHRL
In order to state a cause of action for disability discrimination under the NYCHRL, the complaint must allege that the plaintiff suffers a disability, and that the disability caused the behavior for which the individual was terminated" (Hosking v Mem. Sloan-Kettering Cancer Ctr., 186 AD3d 58, 61 [1st Dept 2020]).
The Administrative Law of the City of New York Section 8-107(1)(a) provides, in relevant part:It shall be an unlawful discriminatory practice [f]or an employer or an employee or agent thereof, because of the actual or perceived disability any person [t]o discriminate against such person in compensation or in terms, conditions or privileges of employment.
(Administrative Code of City of New York § 8-107[a]).
The NYCHRL defines "disability" as "any physical, medical, mental or psychological impairment" (Id. § 8—102). The term "physical, medical, mental or psychological impairment" means "an impairment of any system of the body; including, but not limited to, the neurological system; the musculoskeletal system; the special sense organs and respiratory organs, including, but not limited to, speech organs; the cardiovascular system; the reproductive system; the digestive and genito-urinary systems; the hemic and lymphatic systems; the immunological systems; the skin; and the endocrine system[.]" (Id. § 8—102[b]).
Plaintiff has sufficiently alleged, and also presented evidence, including medical documentation, to show that he is disabled within the definition of disability under the NYCHRL (Cruz v Schriro, 51 Misc 3d 1203(A), *6-7 [Sup Ct 2016]). Further, as noted above, in the discussion under the NYSHRL, Plaintiff sufficiently pleaded that his disability caused the behavior for which he was terminated.
D. Second Cause of Action (Hostile Work Environment)
To make out a hostile work environment claim, a plaintiff must allege that she or he has been subjected to inferior terms, conditions, or privileges of employment because of his or her protected status under the NYSHRL (NY Exec. L. 296[h][applying to claims filed after the amendment's effective date of October 11, 2019]; see also Amend. § 292, S.6577/A.8421), or she or he has been treated less well than other employees because of her or his protected status (Chin v New York City Hous. Auth., 106 AD3d 443, 445 [1st Dept 2013]; Springs v City of New York, 2020 WL 3488893, at *7 [SDNY June 26, 2020]). Whether brought under the NYSHRL or NYCHRL, "the claim will not succeed if the offending actions are no more than petty slights or trivial inconveniences" (Franco v Hyatt Corp., 189 AD3d 569 [1st Dept 2020] [internal citations omitted]). The pleadings must give rise to an inference of at least partial discriminatory or retaliatory motives (Sutter v Dibello, 2019 WL 4195303, at *23 [EDNY Aug. 12, 2019], report and recommendation adopted, 2019 WL 4193431 [EDNY Sept. 4, 2019]).
Here, Plaintiff has sufficiently pleaded a claim for hostile work environment independently under both, the NYSHRL and NYCHRL. A permissible inference of discriminatory intent can be drawn from the following allegations, as also noted above in the discussion of disability discrimination. Plaintiff alleged that Glass asked him in front of his colleagues, "What is wrong with your skin?", which was directly related to Plaintiff's skin condition, that Glass's treatment of him changed for the worse after Glass found out about his skin condition and related ailments, and that, subsequently, Fisher appeared to "keep an eye on someone" and began to "repeatedly yell at [him] to do various tasks which were not relevant to his job or their production and no other employees were treated in the same manner," (Compare Whitfield-Ortiz v Dept. of Educ. of City of New York, 116 AD3d 580, 581 [1st Dept 2014]).
E. Third Cause of Action (Retaliation)
In order to state a claim of retaliation under the NYSHRL and NYCHRL, a plaintiff must allege:(1) The participation in a protected activity,(2) That the defendant was aware of the protected activity,(3) An adverse employment action, or under the NYCHRL, the employer's actions disadvantaged plaintiff and were reasonably likely to deter a person from engaging in protected activity,(4) A causal connection between the protected activity and the adverse employment action.
(Fletcher v Dakota, Inc., 99 AD3d 43, 51 [1st Dept 2012]); Gad-Tadros v Bessemer Venture Partners, 326 F Supp 2d 417, 425 [EDNY 2004]).
An employee engages in a "protected activity" by "opposing or complaining about unlawful discrimination" (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 313 ; see also Davis-Bell v Columbia Univ, 851 F. Supp. 2d 650, 6820 [SDNY 2012]; but see D'Amico v City of New York, 159 AD3d 558, 558 [1st Dept 2018] [holding that a request for a reasonable accommodation is not a protected activity for the purpose of establishing a retaliation claim under either the NYSHRL or NYCHRL]).
Termination from employment constitutes "adverse employment action" (Forrest v Jewish Guild for the Blind, 309 AD2d 546, 552 [1st Dept 2003], affd, 3 NY3d 295 ).
"The requisite causal connection between adverse employment action and a protected activity may be demonstrated by showing evidence of retaliatory animus" (Mucciarone v Initative, Inc., 2020 WL 1821116, at *13 [SDNY Apr. 10, 2020]).
This Court finds that Plaintiff has pleaded a retaliation claim independently under both the NYSHRL and NYCHRL: (1) Plaintiff complained to Glass about the alleged unlawful discrimination, (2) Glass was aware of the complaint, (3) Defendants terminated Plaintiff following his subsequent complaints also on the basis of disability discrimination, and, as noted in the above sections, (4) a causal connection between the activity and the termination has been alleged.
F. Fourth and Fifth Causes of Action (Assault & Battery)
Plaintiff, in his Amended Complaint, alleges assault and battery claims against Fisher, alleging that, "[o]n or about January 20, Defendant Fisher began bumping into and striking [Plaintiff] with his body, arms, and shoulder" (Doc. 40 ¶ 21). This continued "through February 27, 2020 in the course and scope of [Fisher's] employment, [and] place[d] [Plaintiff] in fear and apprehension of harmful and offensive contact with bodily harm" (Id. ¶¶ 71, 76). In order to properly plead civil battery, a plaintiff must allege that the defendant intentionally subjected him or her to offensive or harmful conduct without his or her consent and without justification (Rivera v State, 34 NY3d 383, 389 ). "[T]he slightest unlawful touching of the person of another is sufficient" (6A NY Jur. 2d Assault—Civil Aspects § 3). To plead civil assault, a plaintiff must allege that the defendant placed him or her in fear of battery (Rivera, 34 NY3d at 389; see also Fugazy v Corbetta, 34 AD3d 728, 729 [2d Dept 2006]). This Court finds that Plaintiff has pleaded claims for both assault and battery.
This Court has considered the parties' remaining arguments and finds them unavailing.
Therefore, it is hereby:
ORDERED that the instant motion to dismiss by Defendants ESPN, INC., NEP BEXEL, INC., NEP IMAGE GROUP, LLC, RUSSELL FISHER, and DAVID GLASS ("Defendants"), seeking to dismiss the complaint as against them is denied; and it is further
ORDERED that the cross motion by Plaintiff DEVYN BLACK for leave to amend the Complaint is granted, and the Amended Complaint in the proposed form annexed to Plaintiff's papers (Doc. 40) shall be deemed served upon service of a copy of this order with notice of entry thereof; and it is further
ORDERED that Defendants shall serve an answer to the Amended Complaint or otherwise respond thereto within 20 days from the date of said service with notice of entry; and it is further
ORDERED that counsel for Plaintiff shall serve, via NYSCEF, a copy of the instant decision and order with notice of entry within twenty (20) days of the date of this order; and it is further
ORDERED that counsel are directed to appear for a virtual preliminary conference in this matter on March 1, 2021 at 11:30 AM via Microsoft Teams unless they complete a barcoded preliminary conference form and return it by emailing SFC-Part58-Clerk@nycourts.gov prior to the scheduled conference date.
DAVID BENJAMIN COHEN, J.S.C.