227 A.D.2d 266 (1996)

642 N.Y.S.2d 875

Marisol Espaillat, Appellant, v. Breli Originals, Inc., et al., Respondents

Appellate Division of the Supreme Court of the State of New York, First Department.

The gravamen of plaintiff's second action is, for the reasons set forth herein, to be limited to gender-based discrimination against plaintiff-employee by defendant-employer. In the first action, based primarily upon escalating acts of sexual harassment by Breli's shipping manager culminating in the alleged rape of plaintiff, the IAS Court held that these alleged acts could not render the corporation or its president liable under the theory of respondeat superior. The IAS Court clearly erred in holding that this earlier order, in what was simply a common law tort action, collaterally estopped plaintiff from all recourse to the remedies of a statutory action for gender discrimination (Capital Tel. Co. v Pattersonville Tel. Co., 56 N.Y.2d 11, 18-19; Lukowsky v Shalit, 110 A.D.2d 563, 567).

A "hostile work environment" exists, for purposes of title VII of the Civil Rights Act of 1964 (42 USC § 2000e-2 [a] [1]), when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive as to alter the conditions of the victim's employment and create an abusive working environment (Harris v Forklift Sys., 510 U.S. 17). An employer is liable for a "discriminatorily abusive work environment created by a supervisor if the supervisor uses his actual or apparent authority to further the harassment, or if he was otherwise aided in accomplishing the harassment by the existence of [an] agency relationship" (Karibian v Columbia Univ., 14 F.3d 773, 780, cert denied 512 U.S. 1213).

Plaintiff has alleged sufficient facts that, if true, could render the corporate defendant liable under a "hostile work environment" theory. Plaintiff alleges in her second action that her shipping department supervisor, over a period of many months, repeatedly made offensive sexual remarks to her, inquired about her sexual preferences and touched her without permission, some of which behavior took place in the presence of other Breli employees and officers. Plaintiff alleged that the supervisor had used his authority over her to direct her attendance at a (nonexistent) computer training program in Boston, where he allegedly raped her and paid for the trip with a business credit card. Plaintiff also maintained that Breli's president tolerated such misbehavior by impliedly warning plaintiff that her job was at stake if she refused to be "more understanding" of her supervisor.

These allegations also support the submission of claims under the New York State Human Rights Law, which makes it "an unlawful discriminatory practice * * * [f]or an employer * * * because of the * * * sex * * * of any individual * * * to discriminate against such individual in * * * conditions * * * of employment" (Executive Law § 296 [1] [a]). The "virtually identical * * * federal standards for actionable sexual harassment are used in determining claims brought under the New York Human Rights Law" (Zveiter v Brazilian Natl. Superintendency of Merchant Mar., 833 F.Supp. 1089, 1095).

The allegations also support the submission of claims under Administrative Code of the City of New York § 8-107 (13) (b) (2), which provides that "[a]n employer shall be liable for an unlawful discriminatory practice based upon the conduct of an employee * * * where * * * the employer knew of the employee's * * * discriminatory conduct, and acquiesced in such conduct or failed to take immediate and appropriate corrective action".

Plaintiff is also entitled to replead her cause of action for constructive discharge, to allege that her employer deliberately made her working conditions so intolerable as to force her resignation (Martin v Citibank, 762 F.2d 212, 221). However, plaintiff has not alleged sufficient facts to sustain a sexual harassment or any other claim against the corporate president individually. Furthermore, since the president was not named as a respondent in plaintiff's administrative complaint before the Equal Employment Opportunity Commission (the Federal agency with primary jurisdiction), there is considerable doubt whether a court can exercise personal jurisdiction over him with respect to claims known to plaintiff when she first filed (cf., Johnson v Palma, 931 F.2d 203). Nor are there sufficient allegations to sustain a claim against Breli under a quid pro quo harassment theory, which requires evidence that a plaintiff's reaction to unwelcome sexual conduct be used as the basis for decisions affecting her compensation or terms of employment (Karibian v Columbia Univ., supra, at 777). Plaintiff merely suggested that the raise and promotion she eventually received from Breli may have resulted from her agreement, albeit reluctant, to have drinks with her supervisor one evening after work.

Finally, plaintiff has not adequately alleged that a persistently "racially hostile environment" existed, separate and apart from the gender bias claims.


1000 Characters Remaining reserves the right to edit or remove comments but is under no obligation to do so, or to explain individual moderation decisions.

User Comments

Listed below are the cases that are cited in this Featured Case. Click the citation to see the full text of the cited case. Citations are also linked in the body of the Featured Case.

Cited Cases

  • No Cases Found

Listed below are those cases in which this Featured Case is cited. Click on the case name to see the full text of the citing case.

Citing Cases