Nezaj v. PS450 Bar and Restaurant

Background

Victoria Nezaj sued her former employer, PS450 Bar and Restaurant, alleged corporate alter egos Park South Hospitality, Cerus Hospitality Consulting, LLC, and Vig Park, Inc., and former supervisors Terry Brooks, Matt Wagman, and David Miller. She alleged that she worked for PS450 for about six months as an events manager and floor manager before being fired because of her gender and sexual orientation.

The motion addressed only claims against Miller. Nezaj asserted claims under the New York State Human Rights Law and the New York City Human Rights Law for gender and sexual-orientation discrimination, retaliation, and aiding and abetting discrimination and retaliation.

The court considered the First Amended Complaint under the standard for a motion to dismiss for failure to state a claim. At that stage, the court treated well-pleaded factual allegations as true and drew reasonable inferences in Nezaj’s favor, but did not accept unsupported legal conclusions.

Legal theories against Miller

The court held that Miller could not be treated as Nezaj’s “employer” under either the state or city human-rights laws merely because he allegedly owned PS450 or held a senior position there. Under the state law, however, an individual may be liable for aiding and abetting an employer’s discrimination. Under the city law, an individual may be liable for his own discriminatory conduct or for aiding and abetting another person’s discrimination. The court also held that retaliation claims could proceed against Miller under both laws on theories of direct participation and aiding and abetting.

Gender-discrimination claims

The court denied Miller’s motion to dismiss the direct gender-discrimination claim under the city law. It found plausible allegations that Miller treated Nezaj less well because of her gender, including allegations that he:

- failed to act after Nezaj complained about a rude and misogynistic client and laughed at Brooks’s related teasing; - allegedly withheld Nezaj’s December schedule while male managers received their schedules in advance and did not face comparable last-minute changes; and - refused Nezaj’s request that PS450 provide feminine hygiene products and reacted with annoyance while Brooks laughed.

The court also denied the motion to dismiss the aiding-and-abetting gender-discrimination claims under both laws. It found that the complaint plausibly alleged Miller’s actual participation—not merely liability based on his job title—by alleging that he laughed at, supported, and encouraged Brooks’s discriminatory conduct, reinforced discriminatory treatment through scheduling decisions, and failed to take remedial action despite knowing about the conduct and Nezaj’s complaint.

Sexual-orientation discrimination claims

The court granted Miller’s motion to dismiss the sexual-orientation discrimination claims against him. The court said the complaint lacked concrete allegations showing that Miller himself engaged in sexual-orientation discrimination or actually participated in, or shared the purpose of, discrimination by others. The court dismissed both the direct-liability claim under the city law and the aiding-and-abetting claims under the state and city laws.

Retaliation claims

The court denied Miller’s motion to dismiss the retaliation claims under both laws, including claims based on direct participation and aiding and abetting. The complaint alleged that Nezaj complained to Wagman about Brooks’s harassing conduct; that Wagman disclosed the complaint to Miller despite Nezaj’s request for confidentiality; and that Miller then largely ignored her, shut her out of management responsibilities, and participated in her termination.

The court found that the timing—reduced responsibilities beginning shortly after the complaint and termination about two months later—plausibly supported a connection between Nezaj’s complaint and the alleged retaliation. It also held that the same allegations adequately supported the city-law retaliation claims.

Disposition

The court granted Miller’s motion to dismiss to the extent it challenged the sexual-orientation discrimination claims against him and otherwise denied the motion to dismiss. The ruling concerned only Miller; the opinion states that no other defendant had moved to dismiss in this decision. The court directed the Clerk of Court to terminate the motion at Docket 53.