# Orrego v. Knipfing

> District Court, E.D. New York · September 30, 2021

URL: https://www.frixlaw.com/law-library/cases/10306933

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 30, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10306933

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------------------X

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.

------------------------------------------------------------------X

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10306933. Public record. Not legal advice.