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Harassed employee can sue outside attorney for role in retaliation under NY, NYC ‘aiding and abetting’ laws

By Marjorie Johnson, J.D.

She plausibly alleged causation by claiming that the attorney assisted in filing a frivolous lawsuit against her two months after her pre-suit letter, and then served her improperly 10 days after she filed her EEOC charge.

An in-house general counsel who claimed that her employer’s outside attorney assisted in a retaliatory campaign against her for complaining about her male supervisors’ sexual harassment plausibly alleged “aiding and abetting” claims against the attorney under New York and New York City anti-bias laws. Denying the attorney’s motion to dismiss and retaining supplemental jurisdiction, a federal district court in New York ruled that while her claims may not survive summary judgment, at this early stage of litigation she sufficiently asserted that the attorney directly participated in retaliatory conduct by representing the other defendants in commencing a frivolous lawsuit against her and intentionally humiliating and embarrassing her by serving her improperly (Mondschein v. NY 101, Inc., March 17, 2020, Donnelly, A.).

Pervasive sexual harassment. During the employee’s 18-month tenure, three male supervisors purportedly regularly sexual harassed and discriminated against her. For instance, she claimed a supervisor repeatedly warned her to not get pregnant; chided her for being a “naughty girl” and said that she should be “spanked”; repeatedly stared, commented about, and rubbed against her breasts; and insisted she enter into an intimate relationship with a coworker to whom he referred to her as “our attorney who is single, divorced and Jewish.” The supervisor also once said while holding a stick, “If you don’t do your work, you’ll have this stick up your tuchas” and another time gestured towards his penis while instructing her to tell adversary counsel to “suck his dick.”

Ridiculed, denied wages, fired. She frequently complained, asked the supervisors to stop engaging in the unwanted behavior, and requested an investigation. She also repeatedly advised her supervisors and the outside attorney that the hostile treatment was unlawful. However, no action was taken, and her supervisors and the outside attorney instead retaliated against her by ridiculing her and accusing her of being “a liar and untrustworthy.” She was also denied her full and timely wages and benefits, and eventually not paid at all, which she deemed a discharge.

Frivolous lawsuit, improper service. Her supervisors and the outside attorney also wrongfully accused her of violating her legal and ethical duties, commenced a frivolous lawsuit against her, and humiliated and embarrassed her by serving her improperly. In particular, she sent them a pre-suit demand letter on November 27, 2017; they commenced the lawsuit against her on February 1, 2018; she filed an EEOC charge on February 16; and they served her on February 26 and June 1, by affixing the summons on the lobby door of her apartment building.

“Aiding and abetting” claims. She subsequently brought this action against the employer, her supervisors, and the outside attorney, asserting Title VII, FLSA, and state law claims. At issue here was her two claims against the attorney under the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL). Both laws make it unlawful to retaliate against someone for opposing a practice forbidden or for filing a complaint. The laws also prohibit aiding and abetting forbidden practices where the predicate unlawful conduct has been established. And if such a claim is sufficient under the NYSHRL, it will necessarily survive under the NYCHRL.

Direct participation. To be liable as an aider and abettor under the NYSHRL, the defendant must have actually participated in the conduct giving rise to the claim of discrimination and shared “the intent or purpose of the principal actor.” And while there must be “direct, purposeful participation,” aider and abettor liability is not limited to employers and employees with authority to make decisions. It also extends to attorneys.

Underlying retaliation claim. Here, the employee plausibly alleged her underlying retaliation claim. First, her informal complaints, pre-suit demand letter, and filing of an EEOC charge, were all protected activities. She also sufficiently alleged that she experienced an adverse employment action at this early stage of litigation. She claimed that she faced ridicule and accusations after she complained, was denied full and timely wage supplements and benefits, and was fired. She also asserted that after she gave notice of her claims in her pre-suit demand letter, the defendants—including the outside attorney—retaliated by commencing a frivolous lawsuit against her and serving her improperly.

Timing supports causal connection. She also plausibly alleged causal connection which implicated the outside attorney. In particular, she asserted the he assisted the defendants in commencing an allegedly retaliatory and frivolous lawsuit against her about two months after her pre-suit letter. And after she filed her EEOC charge about two weeks later, they served her—purportedly improperly—just ten days after that. Considering the close temporal proximity, she adequately pleaded causation to allow her retaliation claim to survive at this stage.

Active participation. Although the employee did not allege that the outside attorney participated in all of the retaliatory conduct, she adequately alleged that he actively participated in some of it. She claimed that he acted with her supervisors in engaging in “intentional” retaliation against her and helped them try to “harass and dissuade” her from raising discrimination claims. She also alleged that he directly participated in the retaliation by representing the defendants in commencing a frivolous lawsuit against her and “intentionally humiliated and embarrassed” her by serving her improperly. Thus, while her claims may not survive summary judgment, they were sufficient at this early stage of the litigation.

Supplemental jurisdiction. The court also rejected the attorney’s urging that it decline to exercise supplemental jurisdiction over the NYSHRL and NYCHRL claims against him. Those claims were based on some of the very same conduct raised by her Title VII and FLSA claims, including that the defendants refused to pay her full and timely wages and benefits, discharged her, and filed a frivolous lawsuit against her.