Kulick v. Gordon Property Group LLC

Background

Annette Kulick sued Gordon Property Group, LLC (GPG), Mark Borteck, and Ross Hirsch. She alleged gender discrimination, a hostile work environment, and retaliation under Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, and the New York City Human Rights Law. She also alleged that Borteck and Hirsch aided and abetted violations of the New York State and New York City laws.

Kulick alleged that Borteck subjected her to sexually inappropriate emails and comments, gender-based insults, and comments about her weight and appearance. She reported his conduct in April 2021 and alleged that Hirsch did not adequately address it. She further alleged that GPG ended her remote work and terminated her employment after she complained. Borteck allegedly told her that she could have continued working remotely if she had not reported him.

The defendants moved to dismiss portions of the amended complaint under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint alleges enough facts to support a legally plausible claim. At this stage, the court treated well-supported factual allegations as true and considered certain emails because the amended complaint referred to them and relied on them.

Discrimination claims

The court dismissed Count I, Kulick’s Title VII gender-discrimination claim against GPG. The court found that Kulick plausibly alleged that she suffered an adverse employment action because she alleged that she was terminated. But it found that she did not plausibly connect the termination to gender discrimination. Her allegations about male employees were too general to identify a meaningful comparison, and the gender-based remarks attributed to Borteck were not sufficiently tied to the termination. The court concluded that the allegations more plausibly suggested retaliation for reporting Borteck’s conduct than termination because of gender.

The court allowed Count IV, the New York State Human Rights Law discrimination claim, to proceed against GPG, but dismissed it as to Borteck and Hirsch. It dismissed Count IV as to Borteck and Hirsch with prejudice because the statute, as applied by the court, permits direct discrimination liability against an employer, and Kulick’s employer was GPG rather than the individual defendants.

The court allowed Count VII, the New York City Human Rights Law discrimination claim, to proceed against GPG and Borteck. It dismissed Count VII as to Hirsch because Kulick did not allege that Hirsch made derogatory comments about her or women. The court applied the New York City law’s broader standard, under which a plaintiff need allege that she was treated less well at least partly because of gender; she need not show that discrimination caused a materially adverse employment action.

Hostile-work-environment claims

The court dismissed Count V, Kulick’s New York State hostile-work-environment claim, as to Borteck and Hirsch because they could not be held directly liable under the state law on the allegations presented. It dismissed Count VIII, the New York City hostile-work-environment claim, as to Hirsch because Kulick did not sufficiently allege discriminatory conduct by him.

The defendants did not seek dismissal of Kulick’s Title VII hostile-work-environment claim against GPG, her New York State hostile-work-environment claim against GPG, or her New York City hostile-work-environment claims against GPG and Borteck. Those claims were therefore not dismissed by this opinion.

Retaliation and aiding-and-abetting claims

The court allowed Count III, Kulick’s Title VII retaliation claim against GPG, to proceed. It found that reporting alleged harassment was protected activity and that Borteck’s alleged statement about allowing continued remote work if Kulick had not reported him plausibly connected her termination to retaliation.

The court also allowed Counts VI and IX—the New York State and New York City retaliation claims—to proceed against GPG and Borteck. The court explained that the state and city laws provide broader retaliation protection than Title VII and permit individual liability for retaliation.

The court dismissed Counts VI and IX as to Hirsch. It found that criticizing Kulick’s work and offering her two months’ pay to leave, without allegations connecting those actions to a retaliatory motive or showing that they would likely deter protected activity, were insufficient. The court also dismissed Count X as to Hirsch, rejecting the aiding-and-abetting theory because the complaint did not plausibly allege that Hirsch shared Borteck’s retaliatory intent or actually participated in the alleged unlawful conduct.

Disposition

The court granted in part and denied in part the defendants’ motion to dismiss. It dismissed Count I; Counts IV and V as to Borteck; and all claims against Hirsch, identified as Counts IV through X as to him. The court directed the clerk to terminate the motion and directed the parties to submit a joint letter about settlement referral.