Court Denies Defendants' Motion for Summary Judgment Dismissing Plaintiff's Claim of Bonanza Productions' Vicarious Liability for Discrimination Based on Plaintiff's Sexual Orientation

ATTORNEYS

For Plaintiff: Marjorie Mesidor Esq., Phillips & Associates, New York, NY.

For Defendants: Edward Cerasia II Esq., Cerasia Del Rey-Cone, New York, NY.

DECISION AND ORDER I. BACKGROUND

Plaintiff sues under the New York City Human Rights Law (NYCHRL) claiming that his employer, defendant Bonanza Productions, Inc., and its employee, defendant Peter Soldo, unlawfully discriminated against him based on his sexual orientation and interfered with the exercise of his protected rights. Plaintiff also claims that Bonanza Productions retaliated against him because he complained about the discrimination and constructively discharged him. Plaintiff seeks to hold Bonanza Productions vicariously liable for Soldo's conduct and further claims that each defendant aided and abetted the discrimination by the other defendant. Plaintiff discontinued his claims against defendant Warner Brothers Pictures, Inc., pursuant to the parties' stipulation dated September 18, 2015. C.P.L.R. §3217(a)(2).

II. UNDISPUTED FACTS

Plaintiff was an on-set costume designer working for Bonanza Productions on the television show "Person of Interest" with Soldo, the first assistant director. Soldo alternated time on the set as the first assistant director with another Bonanza Productions employee and thus only worked on the set for one period of two weeks each month. Plaintiff, who is openly gay, was working an overnight camera shoot in the early morning of November 5, 2011, when Soldo asked plaintiff to find a coat for Soldo because he was cold. Plaintiff gave Soldo a long, red "dive coat" with fleece lining, usually given to actors to keep warm while outdoors performing stunts. Aff. of Edward Cerasia II Ex. B, at 52, Ex. C, at 49, 51. Taking the coat from plaintiff, Soldo remarked that he could not wear it because "it's too gay," according to plaintiff, id. Ex. B, at 55, or "this coat's so gay," according to Soldo. Id. Ex. C, at 51. A director standing near them cautioned Soldo that he could not call the coat "gay," to which Soldo responded "but look at it." Id. Ex. B, at 55. See id. Ex. D, at 35. Soldo did not apologize immediately, but later in the morning approached plaintiff twice attempting to apologize.

Plaintiff had no contact with Soldo after November 5, 2011, as Soldo's two weeks on his shift ended, and another first assistant director began working on the set. Plaintiff resigned before Soldo began his next shift.

On November 6, 2011, more than two weeks before plaintiff resigned, his domestic partner and supervisor, Kevin Ritter, filed a complaint about the incident on plaintiff's behalf with Bonanza Productions, which forwarded the complaint to Patricia Mayer, senior counsel in Warner Brothers Pictures' labor relations department. She investigated plaintiff's complaint. On November 17, 2011, Mayer asked plaintiff whether he wanted to switch from working on the set, with Soldo, to off the set in the costume trailer, to avoid Soldo. Plaintiff tried this alternative, but ultimately did not want to continue with it, as it was less visible, less engaged in the production, and contrary to his duties for which his union had collectively bargained. When offered no other alternative, and perceiving no alteration in Soldo's assignment or other disciplinary measures against Soldo, plaintiff resigned from Bonanza Productions November 21, 2011, just as Soldo was to return for his next shift.

After his resignation, Mayer informed plaintiff that defendants would handle his complaint in-house. On December 6, 2011, Bonanza Productions issued Soldo a written reprimand, through Warner Bros. Television, that he had made a statement, "That's so gay," which "could reasonably be construed by other employees as inappropriate," and which was "inconsistent with Company policies and expectations." Id. Ex. K, at 1. The letter referred to only "a single offensive statement," even though plaintiff undisputedly had complained about two offensive statements; advised that, as such, it was not unlawful; and referred to it as "sexual harassment," rather than harassment or discrimination based on sexual orientation. Id. at 2.

III. SUMMARY JUDGMENT STANDARDS

Defendants Bonanza Productions and Soldo now move for summary judgment dismissing the complaint. C.P.L.R. §3212(b). To obtain summary judgment, they must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material issues of fact. Id.; Voss v. Netherlands Ins. Co., 22 N.Y.3d 728, 734 (2014); Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503 (2012); Smalls v. AJI Indus., Inc., 10 N.Y.3d 733, 735 (2008); JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y.3d 373, 384 (2005). Only if defendants satisfy this standard, does the burden shift to plaintiff to rebut that prima facie showing, by producing evidence, in admissible form, sufficient to require a trial of material factual issues. Morales v. D & A Food Serv., 10 N.Y.3d 911, 913 (2008); Hyman v. Queens County Bancorp, Inc., 3 N.Y.3d 743, 744 (2004). In evaluating the evidence for purposes of defendants' motion, the court construes the evidence in the light most favorable to plaintiff. Vega v. Restani Constr. Corp., 18 N.Y.3d at 503; Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 37 (2004). If defendants fail to meet their initial burden, the court must deny them summary judgment despite any insufficiency in the opposition. Voss v. Netherlands Ins. Co., 22 N.Y.3d at 734; Vega v. Restani Constr. Corp., 18 N.Y.3d at 503; Smalls v. AJI Indus., Inc., 10 N.Y.3d at 735; JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y.3d at 384.

IV. PLAINTIFF'S CLAIM FOR DISCRIMINATION BASED ON SEXUAL ORIENTATION

A. Plaintiff's Discrimination Claim Against Soldo

The NYCHRL, N.Y.C. Admin. Code §8-107(1)(a), prohibits defendants from discriminating against plaintiff based on his actual or perceived sexual orientation. The NYCHRL uses the same standard for discrimination and hostile work environment claims: plaintiff must show that he was treated less favorably than other employees because of his sexual orientation. Phillips v. Manhattan and Bronx Surface Tr. Operating Auth., 132 A.D.3d 149, 156 (1st Dep't 2015); Hernandez v. Kaisman, 103 A.D.3d 106, 114 (1st Dep't 2012); Williams v. New York City Hous. Auth., 61 A.D.3d 62, 78-79 (1st Dep't 2009). Plaintiff need not establish that discriminatory remarks were "severe" or "pervasive," but the NYCHRL requires more than incivility, discourtesy, or disrespect. Ji Sun Jennifer Kim v. Goldberg, Weprin, Finkel, Goldstein, LLP, 120 A.D.3d 18, 26 (1st Dep't 2014); Salemi v. Gloria's Tribeca Inc., 115 A.D.3d 569, 570 (1st Dep't 2014); Hernandez v. Kaisman, 103 A.D.3d at 114; Williams v. New York City Hous. Auth., 61 A.D.3d at 78. Plaintiff must show that the conduct of which he complains was more than "petty slights" and "trivial inconveniences." Fruchtman v. City of New York, 129 A.D.3d 500, 500 (1st Dep't 2015); Massaro v. Dept. of Educ. of City of New York, 121 A.D.3d 569, 570 (1st Dep't 2014); Ji Sun Jennifer Kim v. Goldberg, Weprin, Finkel, Goldstein, LLP, 120 A.D.3d at 26; Salemi v. Gloria's Tribeca Inc., 115 A.D.3d at 570.

Plaintiff testified at his deposition that Soldo made discriminatory remarks toward plaintiff in the early morning of November 5, 2011, when Soldo called the coat plaintiff had brought to Soldo "too gay," and when Soldo responded to the director's admonishment regarding this statement with an emphatic "but look at it." Cerasia Aff. Ex. B, at 55. Although plaintiff further testified that Soldo made no other discriminatory comments to him either before or after this incident, these two remarks, alone, reasonably may be considered more than mere "petty slights" and "trivial inconveniences," Salemi v. Gloria's Tribeca Inc., 115 A.D.3d at 569-70; Hernandez v. Kaisman, 103 A.D.3d at 114, and thus raise a factual issue whether Soldo treated plaintiff in a disparaging, degrading anti-homosexual manner and thus less favorably than other, heterosexual employees based on his sexual orientation. Gonzalez v. EVG, Inc., 123 A.D.3d 486, 487-88 (1st Dep't 2014); Salemi v. Gloria's Tribeca Inc., 115 A.D.3d at 569; Hernandez v. Kaisman, 103 A.D.3d at 114. See Williams v. New York City Hous. Auth., 61 A.D.3d at 80 n.30.

The two, isolated remarks are not pervasive, but their impact was harsh and hurtful. They are derogatory and degrading, based on sexual orientation, and subjectively intolerable to a homosexual person. See, e.g., Gonzalez v. EVG, Inc., 123 A.D.3d at 487; Hernandez v. Kaisman, 103 A.D.3d at 110; McRedmond v. Sutton Place Rest. & Bar, Inc., 95 A.D.3d 671, 672 (1st Dep't 2012); Roberts v. United Parcel Service, Inc., 115 F. Supp. 3d 344, 369, 371 (E.D.N.Y. 2015). While the court must assess the evidence from the perspective of a reasonable person, the test is a reasonable person in plaintiff's position, in the context where he experienced the disparaging, degrading remarks. E.g., Gonzalez v. EVG, Inc., 123 A.D.3d at 487-88; Hernandez v. Kaisman, 103 A.D.3d at 112; Roberts v. United Parcel Service, Inc., 115 F. Supp. 3d at 369, 371.

The very remark, whether it was "too gay" or "so gay," unmistakably conveys that "gay" is undesirable or unacceptable. Then, rather than apologizing that he did not intend that meaning, Soldo only reinforced that he meant it, insisting that one only need look to conclude that the gay attributes were undesirable or unacceptable. The two remarks signal a view about the desirability and acceptability of gay attributes in the work place and the propriety of a work environment that denigrates gay attributes. For a person who identified with those attributes, hearing those remarks directed at him, in the performance of his job, from a person in a superior position, surrounded by co-workers, exposing plaintiff to ridicule from them, if not from Soldo, e.g., Hernandez v. Kaisman, 103 A.D.3d at 115, carries the potential to create a stressful, upsetting work environment. E.g., Gonzalez v. EVG, Inc., 123 A.D.3d at 487-88; Hernandez v. Kaisman, 103 A.D.3d at 112; McRedmond v. Sutton Place Rest. & Bar, Inc., 95 A.D.3d at 672; Roberts v. United Parcel Service, Inc., 115 F. Supp. 3d at 369, 371. The remarks were not equally denigrating to heterosexual and homosexual employees and therefore did not affect them equally. E.g., Gonzalez v. EVG, Inc., 123 A.D.3d at 487-88; Hernandez v. Kaisman, 103 A.D.3d at 111; Roberts v. United Parcel Service, Inc., 115 F. Supp. 3d at 371.

Whether Soldo's isolated but disparaging, degrading, anti-homosexual conduct altered plaintiff's employment and unreasonably interfered with his work performance is also a question for the trier of facts. See, e.g., Hernandez v. Kaisman, 103 A.D.3d at 110-11; McRedmond v. Sutton Place Rest. & Bar, Inc., 95 A.D.3d at 672. The remarks were readily perceivable as betraying a disdain for anything or anyone gay, from a person in a superior position, with whom plaintiff was regularly assigned to work. Even Bonanza Productions' delegate responsible for addressing the incident perceived that it may have necessitated separating plaintiff and Soldo in the performance of their duties. Yet the only alternative offered was for plaintiff to alter his environment, to insulate himself from the employees and supervisors with whom he was working, and to work outside the duties for which he as a union member had bargained.

Viewing the evidence in the light most favorable to plaintiff, whether Soldo treated plaintiff in a disparaging, degrading, anti-homosexual manner and thus less favorably than other employees, based on his sexual orientation, and so as to alter his work performance, are questions for the trier of facts. Therefore the court denies defendants' motion for summary judgment dismissing plaintiff's claim against Soldo for discrimination based on plaintiff's sexual orientation. C.P.L.R. §3212(b).

B. Plaintiff's Claim of Bonanza Productions' Vicarious Liability for Discrimination

The NYCHRL, N.Y.C. Admin. Code §8-107(13)(b), imposes vicarious liability on Bonanza Productions, as Soldo's employer, for his discriminatory conduct toward plaintiff in any of the following circumstances. (1) Soldo "exercised managerial or supervisory responsibility." N.Y.C. Admin. Code §8-107(13)(b) (1). (2) Bonanza Productions knew of Soldo's unlawful discriminatory conduct and acquiesced in it or knew of it yet "failed to take immediate and appropriate corrective action." N.Y.C. Admin. Code §8-107(13)(b)(2). Bonanza Productions "should have known" of Soldo's unlawful discriminatory conduct yet "failed to exercise reasonable diligence to prevent such…conduct." N.Y.C. Admin. Code §8-107(13)(b)(3). See Zakrzewska v. New School, 14 N.Y.3d 469, 479 (2010). Assuming Bonanza Production's anti-discrimination policy reflects reasonable diligence to prevent discriminatory conduct, the policy shields against liability only where Bonanza Productions should have known of a non-supervisory employee's discriminatory conduct. Zakrzewska v. New School, 14 N.Y.3d at 480.

Bonanza Productions knew of Soldo's remarks to plaintiff, as Patricia Mayer, its agent to whom it delegated the handling of plaintiff's complaint, testified at her deposition that she learned of the complaint about Soldo's remarks within at least two weeks after they occurred and conducted an investigation into the complaint. Cerasia Aff. Ex. D, at 7-8, 10. Although plaintiff originally asked for a meeting with Soldo and supervisors to determine whether future work with Soldo was viable, the parties dispute whether plaintiff withdrew that request. During the investigation, when Mayer asked plaintiff whether he wanted to meet with Soldo, he declined. Id. at 36.

The undisputed fact remains, however, that the only corrective measure offered during or after the investigation was for plaintiff to switch from working on the set to working in the costume trailer, apart from Soldo. Id. Ex. B, at 99-100. After the investigation, and after plaintiff's resignation, Mayer gave Soldo a written reprimand for his remarks, but did not change his employment in any way. Id. Ex. D, at 37.

This delayed response, lacking in corrective measures, indicates a failure by Bonanza Production supervisors to protect plaintiff against discrimination. E.g., Roberts v. United Parcel Service, Inc., 115 F. Supp. 3d at 371. No admissible evidence demonstrates that Bonanza Productions even orally reprimanded or warned Soldo about his remarks until well after his return and plaintiff's resignation November 21, 2011. The employer thus conveyed the message that, when an employee made disdainful, anti-homosexual remarks to another employee, in the presence of other co-employees, he would escape without ramifications. Even when Bonanza Productions belatedly took action through the letter to Soldo, its benign, erroneous characterizations of his conduct reveal a less than intolerant attitude toward discrimination or harassment based on sexual orientation.

This open factual issue whether Bonanza Productions failed to take immediate and corrective action after learning of Soldo's remarks toward plaintiff, if determined in plaintiff's favor, will render the employer vicariously liable for Soldo's acts. Zakrzewska v. New School, 14 N.Y.3d at 479-80. Therefore the court denies defendants' motion for summary judgment dismissing plaintiff's claim of Bonanza Productions' vicarious liability for discrimination based on plaintiff's sexual orientation. C.P.L.R. §3212(b).

C. Plaintiff's Claims that Defendants Aided and Abetted Discrimination Based on Sexual Orientation

The NYCHRL, N.Y.C. Admin. Code §8-107(6), prohibits defendants from aiding, abetting, inciting, compelling, or coercing any act forbidden under the NYCHRL. Plaintiff may not sustain an aiding and abetting claim against Soldo because Soldo may not aid and abet his own discriminatory conduct. Hardwick v. Auriemma, 116 A.D.3d 465, 468 (1st Dep't 2014); Medical Express Ambulance Corp. v. Kirkland, 79 A.D.3d 886, 888 (2d Dep't 2010). Insofar as plaintiff claims Bonanza Productions aided and abetted Soldo, even if it took no corrective measures whatsoever, no evidence indicates it "actually participated" in Soldo's discriminatory conduct. Asabor v. Archdiocese of N.Y., 102 A.D.3d 524, 530 (1st Dep't 2013); Graciani v. Patients Medical, P.C., 2015 WL 5139199, at *24 (E.D.N.Y. Sept. 1, 2015). See McRedmond v. Sutton Place Rest. & Bar, Inc., 95 A.D.3d at 673; Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 107 n.10 (2d Cir. 2011). Therefore the court grants defendants' motion for summary judgment dismissing plaintiff's claims against Soldo and Bonanza Productions for aiding and abetting discrimination based on sexual orientation.

V. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT DISMISSING PLAINTIFF'S REMAINING CLAIMS.

A. Constructive Discharge

Plaintiff claims he resigned because Bonanza Productions only offered him an alteration of his duties that he found undesirable and did not alter Soldo's duties or take other disciplinary measures against Soldo. Plaintiff further claims Bonanza Productions knew of his discomfort with the status quo and that, if his employer did not respond more effectively, he would resign.

To establish a claim of constructive discharge, however, plaintiff must show Bonanza Productions deliberately created working conditions so intolerable, difficult, or unpleasant that a reasonable person would be compelled to resign. Morris v. Schroder Capital Mgt. Intern., 7 N.Y.3d 616, 622 (2006); Short v. Deutsche Bank Sec., Inc., 79 A.D.3d 503, 504 (1st Dep't 2010); Polidori v. Societe Generale Groupe, 39 A.D.3d 404, 405 (1st Dep't 2007); Mascola v. City Univ. of New York, 14 A.D.3d 409, 410 (1st Dep't 2005). To establish the employer's deliberate conduct, plaintiff must show more than its "lack of concern" and "mere negligence or ineffectiveness." Polidori v. Societe Generale Groupe, 39 A.D.3d at 405. This standard of deliberate conduct for constructive discharge distinguishes it from the standard for discrimination based on a hostile work environment. Gaffney v. City of New York, 101 A.D.3d 410, 411 (1st Dep't 2012).

Thus, even if Bonanza Production's response to plaintiff's complaint was completely ineffective, such a showing is insufficient to support a finding of deliberateness and sustain plaintiff's constructive discharge claim. La Porta v. Alacra, Inc., 142 A.D.3d 851, 852 (1st Dep't 2016); Polidori v. Societe Generale Groupe, 39 A.D.3d at 405-406. Having presented no evidence disputing that Bonanza Productions did investigate plaintiff's complaint regarding Soldo's comments and did at least attempt remedial action to resolve the conflict, Cerasia Aff. Ex. D, at 7-8, 10, 36-37, plaintiff fails to show that Bonanza Productions deliberately created the working conditions that he claims were intolerable and forced him to resign. Polidori v. Societe Generale Groupe, 39 A.D.3d at 405-406. Therefore the court grants defendants' motion for summary < judgment dismissing plaintiff's constructive discharge claim.

B. Retaliation

The NYCHRL, N.Y.C. Admin. Code §8-107(7), prohibits Bonanza Productions from retaliating or discriminating against plaintiff in any manner because plaintiff complained of discrimination. To sustain a retaliation claim under the NYCHRL, plaintiff must show that he participated in a protected activity, that Bonanza Productions knew of this activity, that the employer acted adversely against him, and a causal connection between the protected activity and adverse action. Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 313 (2004); Cadet-Legros v. New York Univ. Hosp. Ctr., 135 A.D.3d 196, 205-206 (1st Dep't 2015); Asabor v. Archdiocese of N.Y., 102 A.D.3d at 528; Fletcher v. Dakota, Inc., 99 A.D.3d 43, 51 (1st Dep't 2012). See Cole v. Sears, Roebuck & Co., 120 A.D.3d 1159, 1160 (1st Dep't 2014); Ji Sun Jennifer Kim v. Goldberg, Weprin, Finkel, Goldstein, LLP, 120 A.D.3d at 25. Unlike the State Human Rights Law, the City Human Rights Law expressly forbids retaliation "in any manner," N.Y.C. Admin. Code §8-107(7); Williams v. New York City Hous. Auth., 61 A.D.3d at 70, and expressly requires a more liberal interpretation than state or federal anti-discrimination laws. N.Y.C. Admin. Code §8-130; Albunio v. City of New York, 16 N.Y.3d 472, 477 (2011); Williams v. New York City Hous. Auth., 61 A.D.3d at 70. The retaliatory act complained of need not result in "an ultimate action" regarding plaintiff, such as discharge, or another materially adverse change in his employment; he must show only that the act was reasonably likely to deter him from engaging in protected activity. N.Y.C. Admin. Code §8-107(7); Williams v. New York City Hous. Auth., 61 A.D.3d at 71.

Plaintiff claims Bonanza Productions retaliated against him for his complaint about Soldo's remarks because, after plaintiff complained, his co-workers began ignoring him, Bonanza Productions failed to act on his complaint with any adverse consequences to Soldo or change in Soldo's employment, and offered only to allow plaintiff to change his assignment. Although plaintiff engaged in protected activity when he complained about Soldo's remarks and, in plaintiff's view, never received an acceptable or effective response, plaintiff fails to show how he was subjected to a retaliatory act that reasonably would have deterred him from engaging in protected activity. Bonanza Productions did not reassign him involuntarily to duties outside his normal work tasks. N.Y.C. Admin. Code §8-107(7); Williams v. New York City Hous. Auth., 61 A.D.3d at 70-71. While its decisions to allow plaintiff to switch positions if he chose and to issue Soldo a written reprimand after investigating plaintiff's complaint may have been an unsatisfactory response, plaintiff does not demonstrate that the employer's acts deterred him from engaging in protected activity, nor that they were reasonably likely to deter him. Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 241 (2d Cir 2007); Flood v. UBS Glob. Asset Mgt., Inc., 2012 WL 288041, at *20 (S.D.N.Y. Feb. 1, 2012). See Williams v. New York City Hous. Auth., 61 A.D.3d at 70.

Plaintiff similarly fails to show how his co-workers' indifference deterred him from engaging in protected activity or was reasonably likely to deter him, especially when he admits that his co-workers did not treat him with hostility or express a negative view toward his reaction to the incident and that he chose to distance himself from them as well. Cerasia Aff. Ex. B, at 91-92, 120; Melman v. Montefiore Med. Ctr., 98 A.D.3d 107, 129 (1st Dep't 2012). He also fails to specify any supervisory co-employees' hostility, negativity, or indifference toward him or their knowledge of such conduct by subordinate co-employees to attribute the retaliatory adverse action or deterrence to the employer. Therefore the court grants defendants' motion for summary judgment dismissing plaintiff's retaliation claim.

C. Interference With a Protected Right

The NYCHRL, N.Y.C. Admin. Code §8-107(19), prohibits defendants from coercing, intimidating, threatening, or interfering with plaintiff in his exercise or enjoyment of any right granted or protected under the NYCHRL. Thus, to sustain a claim of interference with a guaranteed or protected right, he need not show defendants' retaliatory or discriminatory act due to his complaint of discrimination, as for a retaliation, but he must show active coercion, intimidation, threats, or interference in his exercise or enjoyment of a right, rather than simply a deterrent effect.

Again, plaintiff nowhere shows how either defendant coerced, intimidated, threatened, or interfered with plaintiff, whether to discourage him from remaining in his job or from complaining about Soldo's remarks or to retaliate against him for doing so, or in any other way. Nieblas-Love v. New York City Hous. Auth., 165 F. Supp. 3d 51, 78 (S.D.N.Y. 2016). See Montanez v. New York City Hous. Auth., 5 A.D.3d 314, 315 (1st Dep't 2004). Therefore plaintiff fails to sustain a claim under Administrative Code §8-107(19).

VI. CONCLUSION

For the reasons explained above, the court denies defendants' motion for summary judgment dismissing plaintiff's claims of discrimination based on sexual orientation, both against Soldo and against Bonanza Productions for its vicarious liability. C.P.L.R. §3212(b) and (e). The court grants defendants' motion for summary judgment dismissing plaintiff's remaining claims. C.P.L.R. §§3212(b), 3217(a)(2) and (b). Plaintiff and the remaining two defendants shall appear for a pretrial conference March 23, 2017, at 2:30 p.m., in Part 46. 22 N.Y.C.R.R. §202.26. This decision constitutes the court's order.

DATED: December 23, 2016