Orrego v. Knipfing

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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LIDIA M. ORREGO,

Plaintiff,

-against-

MEMORANDUM &

KEVIN KNIPFING, Employer, also known as Kevin ORDER

James; STEPHANIEANNA JAMES-KNIPFING, CV 20-3361 (GRB)(AKT)

Employer, also known as Steffiana de la Cruz; OLD

WESTBURY EDDIE LLC, Company/Payroll owner

Kevin Knipfing; OLD WESTBURY LLC, Unknown

Entity under registration in NY State; STEVE

SAVITSKY, Business Manager, Old Westbury LLC;

and TERESA A. ZANTUA,

Defendants.

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GARY R. BROWN, United States District Judge:

Pro se plaintiff Lidia M. Orrego (“plaintiff”) brings this case against her former employers,

Kevin Knipfing, Stephanieanna James-Knipfing, and two LLCs operated by the Knipfings, Old

Westbury Eddie LLC and Old Westbury LLC; the business manager of the Westbury LLCs, Steve

Savitsky; and her former supervisor (and Ms. Knipfing’s sister), Teresa Zantua (collectively,

“defendants”). Before the Court is defendants’ motion to dismiss. For the reasons set forth below,

defendants’ motion is GRANTED as to plaintiff’s claims under the NYCHRL, the New York

Labor Law, the New York Penal Law, and plaintiff’s claims for discrimination under 42 U.S.C. §

1981 and the NYSHRL; additionally, defendants’ motion is GRANTED as to plaintiff’s retaliation

claims against Savitsky and Zantua and plaintiff’s hostile work environment claims against

Savitsky. Otherwise, defendants’ motion is DENIED.

I. Factual and Procedural History

As set forth in plaintiff’s amended complaint (the “Complaint”), the allegations of which

are accepted as true for the purposes of this motion, plaintiff began working for the Knipfings as

a nanny (and, later on, as a housekeeper) on January 31, 2018. Complaint, Docket Entry (“DE”)

8, at 19. Plaintiff worked in the Knipfings’ home, allegedly located in Nassau County. Id. at 3,

19. During this time, Ms. Zantua supervised plaintiff and five other employees who worked in the

Knipfings’ home. Id. at 19. At the outset of her employment, plaintiff was given an employment

agreement and nondisclosure agreement (NDA) – in English, despite Spanish being her primary

language; according to plaintiff, the NDA was missing most of the constituent pages (plaintiff

apparently signed these documents on February 15, 2018). Id. Critically for purposes of the

present motion, under the NDA, plaintiff agreed not to “publish, disseminate, discuss, disclose . .

. or cause or induce to be disclosed” any confidential information, including “photographs, films,

videotapes, sound recordings, [or] audio tracks” of anyone in the Knipfing family or any

employees of the Knipfings. Id. at 90-91. The various employment-related documents provided

to plaintiff identify different employers: plaintiff’s employer is variously identified as the

Knipfings, Old Westbury Eddie LLC or Old Westbury LLC. See, e.g., Complaint, DE 8, at 19,

49, 80, 88, 98-102. In any case, plaintiff completed her background check and signed these

documents on February 15, 2018. Id. at 19.

Plaintiff alleges that she was repeatedly harassed by Zantua for being Hispanic and/or of

Paraguayan descent. For example, plaintiff alleges that Zantua often ordered plaintiff not to speak

Spanish in front of the Knipfing children, complained about the Knipfings “hir[ing] nannies who

only speak Spanish,” and wondered aloud why “Mexicans work for American families who speak

only English.” Id. at 20, 23, 24, 25, 27, 31. Zantua also made pejorative comments about

plaintiff’s race; for example, at a birthday party for a family friend’s son, after Zantua “ordered

[plaintiff] to take pictures and videos,” a child stepped on plaintiff’s hand and injured plaintiff; in

response, Zantua commented that plaintiff’s “bones [were] useless” because “[y]ou Mexicans eat

a lot of corn.” Id. at 21. On occasions where Zantua perceived that she had been slighted by

plaintiff, or that plaintiff had fallen short in her responsibilities, Zantua defaulted to insulting

plaintiff “because of her race,” including by calling her a “stupid Paraguayan.” Id. at 25-26, 27.

Zantua informed plaintiff that she and Skylar Testa, the house manager, “always made fun of the

Plaintiff” because of her accent – an activity the Knipfing children also participated in. Id. at 25.

Even when not directed specifically at plaintiff, Zantua often made pejorative remarks about

Latinos, on one occasion ordering plaintiff to pay the “Mexicans” who cleaned her car at a carwash

because the “‘Mexicans’ were disgusting to her,” and on another informing plaintiff that “she

would never apologize to ‘a Mexican.’” Id. at 21, 24. Other employees were also subjected to

Zantua’s race-based harassment. See id. at 29. By April 4, 2020, plaintiff began to write a diary

documenting these events. Id. at 20. Plaintiff alleges that, by August 15, she “had already reported

on several occasions of the discriminatory treatment and abuse received from” Zantua. Id. at 22.

On this date, she “was offered the permanent position of Housekeeper” – apparently a demotion,

instigated both by plaintiff’s reporting and “because she was Hispanic.” Id.

Plaintiff also presents certain allegations about Ms. Knipfing’s conduct, starting in August

2018. For example, plaintiff alleges that on August 10, she was ignored by Ms. Knipfing when

she went to help for a concert; when the event coordinator arrived at some point later, Ms. Knipfing

introduced her co-workers, but not plaintiff. Id. at 22. Similarly, on August 15, Ms. Knipfing

accused plaintiff (via another nanny, a Ms. Uzcategui) of some misstep that apparently was not

plaintiff’s fault; when plaintiff went to ask about the issue a few days later, Ms. Knipfing asked

plaintiff to leave the room even though “everyone else [was] walk[ing] in and out of” the room.

Id. Later, toward the end of October, Ms. Knipfing confronted plaintiff when she was sitting down

for lunch, asking her “why she was sitting” – a challenge Ms. Knipfing apparently never made to

plaintiff’s co-workers. Id. at 32. The next day, Ms. Knipfing issued an order prohibiting plaintiff

“from texting her co-workers” and “withdrew [plaintiff’s] access to money for expenses”; Ms.

Knipfing also excluded plaintiff from attending the “All Saints Parade” on November 1, 2018 –

restrictions that applied only to plaintiff. Id. at 32. In sum, plaintiff alleges that she was subject

to disparate treatment at the hands of Ms. Knipfing.

However, in contrast to the allegations against Ms. Zantua, plaintiff offers little to suggest

this treatment emanated from animosity toward Latinos. But on October 2, Ms. Knipfing learned

of an incident where Zantua harassed plaintiff, and “started blaming [plaintiff] and making

malicious remarks with her co-workers in Plaintiff’s absence” (id. at 26).1 Plaintiff also alleges

more generally that Ms. Knipfing “always encourag[ed] this discrimination” and “also harass[ed]

the Plaintiff in front of the other workers.” Id. at 26. Claims of discriminatory animus on the part

of Ms. Knipfing are alleged only in the most general fashion.

Plaintiff also alleges that she was subject to physical assault, specifically by one of the

Knipfings’ children (and, on one occasion, their friends). For example, on June 4, 2018, at a

birthday celebration held for the son of a family friend, a child “stepping on the Plaintiff’s right

hand several time[s] and stood on it injuring her wrist.” Id. at 21. Another time, on October 23,

plaintiff was assaulted in the kitchen, ostensibly by the Knipfings’ son. Id. at 31. Plaintiff claims

1 Plaintiff further alleges that, in response to plaintiff requesting a sick day to visit a doctor on November 2, Ms.

Knipfing “attack[ed] the Plaintiff and sabotage[ed] her work or career with unfair treatment, unjustified negative

evaluations, humiliating and degrading her, using insensitive terms, continuing with discrimination and harassment.”

Complaint, DE 8, at 34. However, the text messages that plaintiff refers to in support of this claim indicate that Ms.

Knipfing’s response was, in fact, fairly mundane, arguably even sympathetic. See id. at 129-30.

that she “was the victim of several physical assaults (kick or punch her back, hand, neck,

shoulders)” by the child – acts that she claims were instigated by Zantua through “her hate speech

against Mexicans.” Id. at 31-32. Plaintiff also alleges that she developed pain in her back and

neck “as a result of the work,” for example, “work[ing] with the Chef . . . carrying items that were

heavy in weight” and “without taking a break,” as well from as the aforementioned assaults. Id.

at 21, 33. These events led plaintiff to seek medical help for her back and neck pain as well as for

the stress “resulting from an environment of discrimination and abuse.” Id. at 21. Plaintiff first

went to a doctor on June 3, where the doctor referred her to physical therapy and prescribed pain

killers. Id. She saw two other doctors on November 1 and 2, who took an X-ray and apparently

diagnosed plaintiff with tachycardia. Id. at 34.

Plaintiff further alleges that on November 2, she submitted to Testa and Ms. Knipfing a

complaint via email that she and Ms. Uzcategui had drafted, which set forth all of their allegations

about “direct and indirect race discrimination, physical abuse/assault, verbal abuse, hostile work

environment[, and] harassment . . . for being Hispanic,” including complaints about Zantua’s

behavior. Id. at 34, 46. When plaintiff returned from her days off visiting the doctors, she was

greeted by Mr. Knipfing, who apparently “admit[ted] that he knew about all the problems

between” Zantua and Uzcategui, and “thanked the Plaintiff for letting him know of all the

problems” they had in the house; however, he apparently “was unaware that it involved the

Plaintiff.” Id. at 35. Mr. Knipfing then informed plaintiff that “an investigation would be opened”

and promised to call her about the results of the investigation, then asked her to “give him [her]

evidence to do the Investigation.” Id. Plaintiff alleges that Mr. Knipfing additionally

“intimidate[d]” her by saying that “nobody should know anything about her complaint”; plaintiff

interpreted this to suggest that he was “obviously concerned that it would become public.” Id. At

the conclusion of this conversation, Mr. Knipfing “suspended her from going to work until [the]

investigation was completed” – apparently, plaintiff was the only employee subject to a

suspension, “even though other co-workers were involved in the complaint.” Id. Plaintiff further

claims that Testa and Mr. Knipfing “mocked [her] for being Hispanic,” but without any further

detail. Id.

Two days later, on November 8, plaintiff sent Mr. Knipfing “all the evidence that

support[ed] her complaint.” Id. at 36. A few days later, Testa texted plaintiff directing her “to

meet with Investigators in a Starbucks Coffee location in Rego Park.” Id. The next day, plaintiff

met with the two investigators, but claims that she “was not physically or emotionally well” at the

time “especially for the way she was treated” by Ms. Knipfing “after receiving her complaint.” Id.

at 36-37. The investigators also asked if she ever saw the complaint that Uzcategui wrote, or her

notes or videos; plaintiff answered that she “never saw any of that evidence,” but that Uzcategui

had “told her about it all the time.” Id. at 37. The investigators then asked “if she would continue

working with” Ms. Uzcategui, which ultimately led plaintiff to believe that the investigators

“avoided talk about and discrimination and abuse [and] focused more on the issues between her

and” Uzcategui. Id. Thus, plaintiff claims that the Knipfings used the investigators “to cover the

complaint of discrimination and physical assault and other[] abuses in addition to intimidating the

Plaintiff.” Id.

On November 14, Testa messaged plaintiff requesting her diary; she emailed Mr. Knipfing

over the next two days the evidence she had on hand “with Pictures, Videos, Voice Messages,

Diary with dates and times [documenting] all acts of discrimination and abuses.” Id. at 37. While

the investigation was in progress, on November 24, Ms. Knipfing texted plaintiff a photo of a priest

or minister overlaid with the message, “Inasmuch as you pray with all your soul for the one who

has slandered you so much will God reveal the truth to them who have believed the slander.” Id.

at 38. Plaintiff took this to mean that Ms. Knipfing was accusing plaintiff of slander. Id. Plaintiff

ultimately received a termination letter on November 27 from Old Westbury LLC; the letter was

signed by Steve Savitsky,2 who identified himself as the business manager of Old Westbury LLC.3

Id. at 38, 49. The letter sets forth the following grounds for her termination: (a) “Breach of

[plaintiff’s] Non-Disclosure Agreement” including by recording a conversation with Uzcategui in

public and taking “recordings and photographs” of the Knipfings’ home; plaintiff’s “statement that

[she was] unwilling to continue working with” Uzcategui; and “[their] conclusion that [she] made

statements in [her] complaint that [she] know[s] to be false.” Id. at 49. The letter also notified

plaintiff that she had health insurance through United Healthcare that would be terminated on

November 30, and that she was eligible for COBRA benefits. Id.

Plaintiff contests the grounds set forth in the termination letter, claiming that she “never

received . . . any written warnings or performance reviews related to the content of the Termination

Letter.” Id. at 38. Plaintiff specifically contests that she violated the NDA, observing that (a) the

recording she made of her and Uzcategui’s conversation “was not shared with a third party or

disclosed,” and (b) Uzcategui did not seem subject to the same punishment, despite the fact that

she “disclosed information . . . about the Knipfing[] Family in a public place and in the presence

of a third party[.]” Id. Plaintiff also claims that the photographs referred to are “the photographs

of the candies” sent to Mr. Knipfing on November 15 “that prove the abuse against” one of the

2 Plaintiff claims that, by sending this letter, Savitsky “actively participated in retaliation and discrimination” against

her. Complaint, DE 8, at 38.

3 Plaintiff therefore claims that this letter was “illegal because it came from an unknown entity who was not the

Plaintiff’s employer.” Complaint, DE 8, at 41. To be sure, as noted above, the Knipfings identified a number of

different persons as plaintiff’s employer. Nevertheless, plaintiff concedes that she was terminated by the Knipfings

on this date, claiming that Mr. Knipfing “gave the order to Steve Savitsky . . . to manufacture the Termination Letter

dated November 27, 2018 under the name of the unknown Entity Westbury LLC.” Id. at 38.

children,4 but reiterates (as noted above) that other employees also took photographs inside the

house (and, apparently, occasionally published those photographs on social media). Id. at 39-40,

42. As for the claim that plaintiff was unwilling to work with Uzcategui, plaintiff asserts that the

investigators criticized Uzcategui, such that it was unreasonable for them to ask if plaintiff would

continue working with her. Id. at 40. Finally, plaintiff claims that “according to all the evidence”

she had presented, everything in her complaint was true. Id.

Following her termination, plaintiff claims that that the Knipfings and Savitsky

“discriminated and retaliated against” her by “immediately canceling her medical plan” and

denying her COBRA benefits. Id. at 41. Plaintiff further alleges that on November 29, two days

after her termination, her “Health Insurance [carrier] confirmed that [her former] employers didn’t

submit the application for COBRA,” such that plaintiff could not “be covered by insurance.” Id.

Additionally, the Knipfings “refused to provide reference[s]” for plaintiff to get another job. Id.

Plaintiff then raises allegations about certain post-termination events that are not relevant here.

Plaintiff filed this action on July 23, 2020, asserting claims for discrimination, retaliation,

and hostile work environment under 42 U.S.C. § 1981, the New York State Human Rights Law

(“NYSHRL”), and the New York City Human Rights Law (“NYCHRL”); plaintiff also brings

claims under New York Labor Law § 195(6), and sections 170 and 210 of the New York Penal

Law. Following the submission of a pre-motion letter in anticipation of a motion to dismiss filed

by all defendants to this action, the undersigned set forth a briefing schedule for the anticipated

motion. See Electronic Order of September 22, 2020. The fully briefed motion was filed on

December 11, 2020. This opinion follows.

4 In essence, plaintiff alleges that Uzcategui was over-feeding one of the children candy on a regular basis in order to

placate the child.

II. Discussion

It has been well established that “[a] document filed pro se is ‘to be liberally construed,’

and ‘a pro se complaint, however inartfully pleaded, must be held to less stringent standards than

formal pleadings drafted by lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations

omitted). Nevertheless, many of plaintiff’s claims may be dismissed in short order. First, as to

plaintiff’s NYCHRL claim, “[t]o state a claim under the NYCHRL, plaintiff must allege that the

defendant discriminated against her ‘within the boundaries of New York City.’” Robles v. Cox &

Co., 841 F. Supp. 2d 615, 623 (E.D.N.Y. 2012) (quoting Shah v. Wilco Sys., Inc., 27 A.D.3d 169,

175 (N.Y. App. Div. 1st Dep’t 2005). Nearly all of the activities set forth above that are relevant

to a NYCHRL claim are alleged to have occurred in the Knipfings’ household, which, as asserted

in the complaint, is located outside of New York City. While plaintiff does allege that Zantua

harassed plaintiff during a trip to the NYC Children’s Museum, DE 8 at 26, “[t]he fact that certain

acts leading to discrimination may occur in New York City will not necessarily give rise to a claim

under the City HRL. Salvatore v. KLM Royal Dutch Airlines, No. 98 CIV. 2450 (LAP), 1999 WL

796172, at *16 (S.D.N.Y. Sept. 30, 1999). It is undisputed that the “impact of the offensive

conduct” – the lion’s share (indeed, all but one incident) of the harassment, as well as the

suspension of plaintiff’s employment privileges, her alleged demotion, and her ultimate

termination – all occurred outside of New York City. See Robles, 841 F. Supp. 2d at 62.

Accordingly, the NYCHRL claim must be dismissed.

Second, as to plaintiff’s New York Labor Law claim, § 195(6) holds that “[e]very employer

shall . . . notify any employee terminated from employment, in writing, of the exact date of such

termination as well as the exact date of cancellation of employee benefits connected with such

termination. In no case shall notice of such termination be provided more than five working days

after the date of such termination.” Plaintiff affirmatively alleges that she was provided such notice

by defendants and attached her termination letter which clearly establishes that defendants met this

requirement. Although plaintiff contests that this notice was insufficient as § 195(6) also requires

the letter to include the “name of [the] employer” – which, as noted above, plaintiff contests - §

195(6) does not, in fact, contain such a requirement. Accordingly, plaintiff’s New York Labor

Law claim must also be dismissed.

Finally, plaintiff’s claims under the New York Penal Law (for forgery and perjury) fail, as

“forgery[] and perjury . . . are crimes and therefore do not give rise to civil causes of action.”

Luckett v. Bure, 290 F.3d 493, 497 (2d Cir. 2002). Furthermore, plaintiff asserts in her opposition

brief that the complaint “requested no relief in connection with” these claims. DE 22-5 at 26. For

both reasons, then, plaintiff’s claims under the New York Penal Law are dismissed.

Plaintiff’s claims under 42 U.S.C. § 1981 and the NYSHRL merit closer examination.

First, as to plaintiff’s discrimination claims, “Section 1981[] and NYSHRL discrimination claims

[are analyzed] under the same burden shifting framework as first set forth by the Supreme Court

in McDonnell Douglas Corp. v. Green.” McGill v. Univ. of Rochester, 600 F. App’x 789, 790 (2d

Cir. 2015). As the Second Circuit noted in McGill:

Under the McDonnell Douglas framework, a “plaintiff bears the initial burden of

establishing a prima facie case of discrimination.” To establish a prima facie case

of discriminatory discharge, “a plaintiff must show that (1)[s]he is a member of a

protected class; (2)[s]he was qualified for the position [s]he held; (3)[s]he suffered

an adverse employment action; and (4) the adverse action took place under

circumstances giving rise to the inference of discrimination.”

Id. at 790–91 (citations omitted). Defendants limit their arguments to the fourth element, as there

can be little dispute that plaintiff’s allegations meet the first three. First, defendants cite the well-

established principle that “[w]hen the same actor hires a person already within the protected class,

and then later fires that same person, ‘it is difficult to impute to her an invidious motivation that

would be inconsistent with the decision to hire.’” Carlton v. Mystic Transp., Inc., 202 F.3d 129,

137 (2d Cir. 2000) (citation omitted). Likewise, “where the termination occurs within a relatively

short time after the hiring there is a strong inference that discrimination was not a motivating factor

in the employment decision.” Id. at 137-38 (collecting cases finding that this inference applies

where the time between hiring and firing was under two years). There can be little dispute that the

Knipfings were the ones to both hire and fire plaintiff, and that they did both in a period of under

a year. Second, defendants contend that plaintiff “has failed to offer any non-conclusory facts or

evidence demonstrating that the Knipfings . . . harbored any discriminatory animus against her

because of her race or national origin.” DE 22-3 at 18. The allegations set forth in the complaint

do not establish any overt acts of discrimination by the Knipfings. “[A]bsent direct evidence of

discrimination,” then, plaintiff must allege “at least minimal support for the proposition that the

employer was motivated by discriminatory intent.” Littlejohn v. City of New York, 795 F.3d 297,

311 (2d Cir. 2015). Plaintiff fails to meet even this lesser burden: though she alleges disparate

treatment at the hands of Ms. Knipfing, any allegations that such treatment was “motivated by

discriminatory intent” are, at best, conclusory. Any allegations about Mr. Knipfing’s

discriminatory motives, to the extent they even exist, are even sparser. Otherwise, the same

conclusion appears to apply to the corporate defendants, and plaintiff fails to allege that any other

defendant instituted an “adverse employment action” (e.g., demotion, suspension, or termination)

against her.5 Accordingly, plaintiff’s discrimination claims must be dismissed.6

5 “Examples of materially adverse employment actions include termination of employment, a demotion evidenced by

a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material

responsibilities, or other indices unique to a particular situation.” Bowen-Hooks v. City of New York, 13 F. Supp. 3d

179, 211 (E.D.N.Y. 2014). To be sure, plaintiff alleges that Savitsky signed her termination letter, but once again,

any allegations that his conduct was in any way “motivated by discriminatory intent” are merely conclusory.

6 Defendants also argue that plaintiff’s discrimination claim fails because, “at the time Plaintiff was employed, the

Knipfings employed a very diverse group of people, including Uzcategui, who is also Hispanic and remains

employed.” DE 22-3 at 17. However, “an employer may not escape liability for discriminating against a given

Plaintiff’s retaliation claims are analyzed under the same burden-shifting framework. Thus,

“to establish a prima facie case of retaliation, a plaintiff must demonstrate that (1) she engaged in

protected activity; (2) the employer was aware of that activity; (3) the plaintiff suffered a materially

adverse action; and (4) there was a causal connection between the protected activity and that

adverse action.” Guzman v. City of New York, 93 F. Supp. 3d 248, 261 (S.D.N.Y. 2015) (citation

omitted). “As to the first element of the prima facie case, ‘[t]he term “protected activity” refers to

action taken to protest or oppose statutorily prohibited discrimination,’ and may take the form of

either formal or informal complaints.” Id. (citations omitted). However, such complaints

“qualif[y] as protected activity only if ‘the employee has a good faith, reasonable belief that the

underlying challenged actions of the employer violated the law.’” Id. at 261-62. Defendants only

contest the fourth element of this test, claiming that plaintiff “has failed to allege sufficient facts

to show that her termination was motivated by” the November 2 email, pointing instead to the

rationales set out in the termination letter. DE 22-3 at 25. However, “[p]roof of causation can be

shown . . . indirectly, by showing that the protected activity was followed closely by discriminatory

treatment.” Hicks v. Baines, 593 F.3d 159, 170 (2d Cir. 2010). Less than a week elapsed between

plaintiff’s complaint and her suspension, while less than three weeks elapsed between her

complaint and her termination. Moreover, the November 2 email is not the only protected activity

alleged by plaintiff: as noted above, plaintiff also alleges that by August 15, she had already

“reported on several occasions of the discriminatory treatment and abuse received from” Zantua.

It is notable, then, that plaintiff also alleges that her disparate treatment at the hands of Ms.

Knipfing – including her alleged demotion – began around this time. Given the solicitude granted

pro se complaints, plaintiff appears to have alleged a sufficient causal connection between her

employee on the basis of race simply because it can prove it treated other members of the employee's group favorably.”

Graham v. Long Island R.R., 230 F.3d 34, 43 (2d Cir. 2000).

protected activity and the adverse employment actions via temporal proximity. See Littlejohn, 795

F.3d at 319-20 (finding “allegations that the [adverse employment action] occurred within days

after [plaintiff’s] complaints of discrimination” to be “sufficient to plausibly support an indirect

inference of causation”). Thus, plaintiff has pleaded plausible retaliation claims under § 1981 and

the NYSHRL against the Knipfings and the corporate defendants. However, as noted above,

plaintiff fails to allege that any other defendant instituted an “adverse employment action” against

her, so plaintiff’s retaliation claims against Zantua and Savitsky are dismissed.

Finally, “[t]o establish a hostile work environment” claim, “a plaintiff must show that ‘the

workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently

severe or pervasive to alter the conditions of the victim's employment and create an abusive

working environment.’” Littlejohn, 795 F.3d at 320–21; see also Westbrook v. City Univ. of New

York, 591 F. Supp. 2d 207, 232 (E.D.N.Y. 2008). “The incidents complained of must be more

than episodic; they must be sufficiently continuous and concerted in order to be deemed

pervasive.” Littlejohn, 795 F.3d at 321 (citation omitted). A plaintiff “must show not only that

she subjectively perceived the environment to be abusive, but also that the environment was

objectively hostile and abusive.” Guzman, 93 F. Supp. 3d at 263 (quoting Demoret v. Zegarelli,

451 F.3d 140, 149 (2d Cir.2006)). Additionally, a plaintiff must establish that “‘a specific basis

exists for imputing’ the objectionable conduct to the employer” and, of course, that “the hostile

conduct occurred because of a protected characteristic.” Tolbert v. Smith, 790 F.3d 427, 439 (2d

Cir. 2015). In evaluating such claims, a court must consider “the totality of the circumstances, . .

. including ‘the frequency of the discriminatory conduct; its severity; whether it is physically

threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes

with an employee’s work performance.’” Demoret, 451 F.3d at 149 (quoting Harris v. Forklift

Sys., Inc., 510 U.S. 17, 23 (1993)). However, the Second Circuit “ha[s] repeatedly cautioned

against setting the bar too high” in this context, holding that “a plaintiff need only plead facts

sufficient to support the conclusion that she was faced with ‘harassment ... of such quality or

quantity that a reasonable employee would find the conditions of her employment altered for the

worse.’” Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (citation omitted).

Defendants compare plaintiff’s allegations to those in another case, in which the hostile

work environment claim was dismissed because the conduct at issue entailed, “at most, isolated

and sporadic incidents that occurred over the course of a year.” DE 22-3 at 21 (quoting Alvarado

v. Mount Pleasant Cottage Sch. Dist., 404 F. Supp. 3d 763, 781 (S.D.N.Y. 2019)). Indeed,

defendants acknowledge that, in Alvarado, exactly four incidents occurred. Id.; see also Alvarado,

404 F. Supp. 3d at 781 (holding that the plaintiff in that case “ha[d] pointed to four incidents”).

These cases are far from comparable. Plaintiff here sets forth a continuing pattern of race-based

abuse and harassment at the hands of Zantua, a course of conduct that seems to have prevailed

over the duration of plaintiff’s tenure in the Knipfing household. Even more troubling, plaintiff

alleges that Zantua encouraged other members of the household staff, and even the Knipfings’

children, to participate in this harassment. Indeed, plaintiff alleges that Zantua’s harassment was

pervasive enough to drive her to seek assistance from her co-workers in presenting a complaint to

the Knipfings – arguably an understandable concern, given that Zantua is Ms. Knipfing’s sister –

and to complain to the Knipfings on multiple occasions about Zantua’s behavior. At this early

juncture, plaintiff seems to have satisfied the pleading standard.

Much of the remainder of defendants’ argument hinges on whether Zantua was actually

plaintiff’s supervisor (or even an employee of the Knipfings). “For the purpose of vicarious

liability under § 1981, a supervisor is a person empowered by the employer to take tangible

employment actions against the victim, i.e., to effect a significant change in employment status,

such as hiring, firing, failing to promote, reassignment with significantly different responsibilities,

or a decision causing a significant change in benefits.” Lamarr-Arruz v. CVS Pharmacy, Inc., 271

F. Supp. 3d 646, 659 (S.D.N.Y. 2017) (quoting Vance v. Ball State Univ., 570 U.S. 421, 431

(2013)) (quotations omitted). To be sure, “[t]his is not a case where supervisory status is readily

determinable.” Id. Zantua engaged in none of these activities. However, this list is merely

illustrative, not exhaustive; moreover, plaintiff alleges that Zantua “ordered” her to engage in, or

cease, certain conduct – and suggests that Zantua had similar power over other employees. Thus,

at this early stage, particularly in light of the liberal construction applied to pro se pleadings, the

Court must accept plaintiff’s allegation that Zantua was her supervisor for the purposes of

evaluating plaintiff’s hostile work environment claims. Given that Zantua herself did not impose

any “tangible employment action,” the Knipfings “may escape liability by establishing, as an

affirmative defense, that (1) [they] exercised reasonable care to prevent and correct any harassing

behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or

corrective opportunities that the employer provided.” Lamarr-Arruz, 271 F. Supp. 3d at 659

(quoting Vance, 570 U.S. at 424).

Defendants therefore contest whether the Knipfings should have known about this

harassment, pointing out that, in her November 2 email, plaintiff stated the following: “I am writing

to you this letter because I have not had the opportunity to speak or explain personally to you

because of all the restrictions I have to communicate with you Mrs. Steffiana,” arguing that this

makes it “clear” that this was “the first time Plaintiff put the Knipfings on notice about any issues

she may have been having with Zantua.” DE 22-3 at 23-24; DE 8 at 46. Defendants conveniently

omit the sentence immediately preceding this one, however, in which plaintiff states that “I am

writing to you and to Skylar as house manager, about matters as I previously did on several

occasions for different reasons and which I will expose in this email.” DE 8 at 46 (emphasis

added). Thus, if anything, the November 2 email only further establishes the conclusion noted

above, i.e., that plaintiff had complained to the Knipfings about Zantua’s abuse on multiple

occasions prior to the email. Otherwise, defendants do not attempt to claim either that (a) the

Knipfings exercise reasonable care to prevent or correct Zantua’s harassment prior to November

2, or that (b) plaintiff failed to take advantage of corrective opportunities. Indeed, the allegations

in the complaint clearly lead to the opposite conclusion on both counts. Accordingly, plaintiff has

pleaded plausible claims for hostile work environment under § 1981 and the NYSHRL against

Zantua, the Knipfings, and the corporate defendants. However, plaintiff fails to allege either that

Savitsky either engaged in any harassment or that he functioned as plaintiff’s employer; therefore,

plaintiff’s retaliation claims against Savitsky are dismissed.

III. Conclusion

Based on the foregoing, it is hereby Ordered that defendants’ motion is GRANTED as to

plaintiff’s claims under the NYCHRL, the New York Labor Law, the New York Penal Law, and

plaintiff’s claims for discrimination under 42 U.S.C. § 1981 and the NYSHRL; additionally,

defendants’ motion is GRANTED as to plaintiff’s retaliation claims against Savitsky and Zantua

and plaintiff’s hostile work environment claims against Savitsky. Otherwise, defendants’ motion

is DENIED.

Dated: Central Islip, New York

September 30, 2021

/s/ Gary R. Brown__________

Gary R. Brown

United States District Judge