Sherman v. Fivesky, LLC

Background

Robert Sherman sued Fivesky, LLC, Fivesky Technology Services, LLC, and Reza Pourkhomami. The opinion states that Sherman worked for Fivesky beginning in or around April 2017 as a Sales Director and/or Account Manager, reported directly to Pourkhomami, and resigned or was constructively discharged in or around March 2019. A constructive discharge is a situation in which working conditions become so intolerable that a reasonable person would feel compelled to resign.

Sherman alleged that Pourkhomami, who the complaint described as Fivesky’s principal, owner, and/or chief executive officer and as Sherman’s manager, repeatedly made racist, sexually explicit, and anti-Jewish comments. Sherman alleged that Pourkhomami repeatedly referred to him as a “cheap Jew” and a “fuckin Jew,” continued such conduct after Sherman complained, and contributed to anxiety and other emotional problems that led Sherman to take medical leave and leave his job. Sherman also alleged that Pourkhomami spiked his coffee with hot sauce after Sherman complained.

Claims and legal standard

Sherman asserted discrimination and hostile-work-environment claims based on race, sex, and religion under Title VII, the New York State Human Rights Law, and the New York City Human Rights Law. He also asserted retaliation claims under Title VII, 42 U.S.C. § 1981, the New York State Human Rights Law, and the New York City Human Rights Law. He asserted some claims against Pourkhomami individually and alleged that Pourkhomami aided and abetted violations of the New York laws.

The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint alleges enough facts to make a claim legally plausible. At that stage, the court accepted the complaint’s factual allegations as true but did not decide whether Sherman would ultimately prove them.

Court’s analysis

The court rejected the defendants’ timeliness argument at the pleading stage. It construed Sherman’s allegations as asserting that he resigned in or around March 2019, which would have placed his May 2019 filing with the Equal Employment Opportunity Commission within the applicable 300-day period for his Title VII claims.

The court dismissed the race-based hostile-work-environment and discrimination claims. Although the alleged racial comments were offensive and racist, the court concluded that the complaint did not plausibly allege that they were directed at Sherman because he was Caucasian or that they expressed hostility toward Caucasian people. The court also declined to decide whether Sherman lacked statutory standing to complain about discrimination against other racial groups because it resolved the claim on other grounds.

The court also dismissed the sex-based hostile-work-environment and discrimination claims. It concluded that the alleged sexual comments, explicit images, and sexual discussions did not plausibly show that Sherman was targeted or disadvantaged because he was a man. The fact that Pourkhomami allegedly did not show the same material to female employees was not, by itself, enough to show discrimination against Sherman based on sex.

The religion-based claims survived. The court held that the alleged repeated anti-Jewish comments directly invoked Sherman’s religion, were allegedly made weekly and over an extended period, and plausibly created an objectively and subjectively hostile work environment. The allegations also plausibly supported a constructive-discharge theory because the conduct allegedly continued after Sherman complained and made his working conditions intolerable.

The retaliation claims also survived. The court held that Sherman plausibly alleged protected activity by complaining to Pourkhomami and a manager about discriminatory conduct, that the defendants knew about those complaints, and that the hot-sauce incident and worsening conduct could qualify as adverse actions. The close timing between Sherman’s complaints and the alleged retaliation supported a plausible causal connection at the pleading stage.

Disposition

The court held that Sherman’s religion-based discrimination and hostile-work-environment claims under the federal and New York laws could proceed. It also allowed his retaliation claims to proceed. Under the New York State Human Rights Law and New York City Human Rights Law, the court allowed the related individual-liability claims against Pourkhomami and the religion-based aiding-and-abetting claims to proceed. The court dismissed Sherman’s remaining claims, including the race- and sex-based discrimination and hostile-work-environment claims. The defendants’ motion to dismiss was therefore granted in part and denied in part.