Andrade v. Cultural Care, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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KELLY ANDRADE, :

:

Plaintiff, :

: DECISION & ORDER

v. : 21-CV-5237 (WFK) (SJB)

:

CULTURAL CARE, INC., MICHAEL :

ESPOSITO, and DANIELLE ESPOSITO, :

:

Defendants. :

:

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WILLIAM F. KUNTZ, II, United States District Judge:

On August 21, 2023, Plaintiff Kelly Andrade (“Plaintiff”), Individual Defendants Michael

Esposito and Danielle Esposito (the “Individual Defendants” or “the Espositos”), and Defendant

Cultural Care, Inc. each filed fully-briefed motions for summary judgment. ECF Nos. 62, 60, 61.

In her Motion, Plaintiff seeks summary judgment on her various claims against the Espositos. ECF

No. 62. In their Motion, the Espositos seek summary judgment in their favor on Plaintiff’s claims

against them. ECF No. 60. In its Motion, Cultural Care seeks summary judgment in its favor on

Plaintiff’s claims against it. ECF No. 61. For the following reasons, the Court GRANTS

Plaintiff’s Motion, DENIES the Epositos’ Motion, and GRANTS in part and DENIES in part

Cultural Care’s Motion.

I. BACKGROUND

The following facts are drawn from the parties’ Local Rule 56.1 Statements. Unless

otherwise noted, where a party’s Rule 56.1 statement is cited, that fact is undisputed.

On March 5, 2021, Kelly Andrade (“Plaintiff”) came to the United States from Colombia

to work as an au pair. Pl.’s R. 56.1 St. ¶¶ 1, 6. Defendant Cultural Care, an au pair program

sponsor, arranged for Plaintiff to live and work in the Staten Island home of Individual

Defendants Michael Esposito and Danielle Esposito (collectively, the “Individual Defendants” or

“the Espositos”). Id. ¶ 8. Upon moving into the Espositos’ home, Plaintiff observed what

appeared to be a smoke detector above her bed. Id. ¶ 11. On March 23, 2021, after noticing the

smoke detector had been repositioned on the ceiling, Plaintiff examined the device, at which

point she discovered it contained a hidden camera with a memory card. Id. ¶¶ 17-18. Upon

further inspection, Plaintiff discovered the memory card contained hundreds of recordings of

Plaintiff, many of which depicted Plaintiff nude, dressing, or undressing. Id. ¶ 18.

Plaintiff immediately took the camera and memory card to the police and filed a report

against the Espositos. Id. ¶ 20. That same day, Plaintiff resigned from her au pair position. Id. ¶

21. The next day, March 24, 2021, Defendant Michael Esposito was arrested. Id. ¶ 23. On

April 6, 2022, Defendant Michael Esposito pled guilty to state charges of Unlawful Surveillance

in the Second Degree, a Class E felony, and Attempted Unlawful Surveillance in the Second

Degree, a Class A misdemeanor. Id. ¶ 27. In his plea allocution, Defendant Michael Esposito

admitted to purchasing a concealed surveillance camera that looked like a smoke detector and

installing the camera in Plaintiff’s bedroom without her knowledge. Id. ¶¶ 12-14.

Plaintiff initiated the instant action on September 20, 2021. ECF No. 1. On February 7,

2023, the parties filed fully-briefed motions for summary judgment. ECF Nos. 40, 42, 49.

However, on August 14, 2023, Plaintiff and the Individual Defendants jointly informed the Court

they had agreed to mediate this case and selected a mediator. ECF No. 52. In response, the

Court dismissed as moot the pending motions for summary judgment. However, on August 21,

2023, the parties reported mediation was unsuccessful. The Court then directed the parties to re-

file their motions for summary judgment and scheduled oral argument on the parties’ motions.

On September 6, 2023, the Court held oral argument on the parties’ motions for summary

judgment. After hearing from the parties, the Court issued oral rulings as to each motion.

Specifically, the Court granted Plaintiff’s Motion for Summary Judgment against the Individual

Defendants and denied the Individual Defendants’ Motion for Summary Judgment on Plaintiff’s

claims. The Court also denied Defendant Cultural Care’s Motion for Summary Judgment on

Plaintiff’s employment discrimination claims, finding issues of material fact regarding the

employment relationship between Defendant Cultural Care and Plaintiff. See ECF No. 71. The

Court informed the parties it would also issue a written decision following the proceeding. It

does so now.

II. LEGAL STANDARDS

Summary Judgment

The standard for summary judgment is well settled. Pursuant to Federal Rule of Civil

Procedure 56(a), a court may grant a motion for summary judgment only if “the movant shows

that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a); Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d

Cir. 2013).

An issue of fact is “genuine” if “the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

“Conclusory allegations, conjecture, and speculation are insufficient to create a genuine issue of

fact.” Shannon v. N.Y.C. Transit Auth., 332 F.3d 95, 99 (2d Cir. 2003) (internal quotation marks

and citation omitted). “Only disputes over facts that might affect the outcome of the suit under

the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S.

at 248. In determining whether a factual dispute warrants submission to a jury, courts must be

“guided by the substantive evidentiary standards that apply to the case.” Id. at 255.

A fact is “material” if it “might affect the outcome of the suit under the governing law.”

Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 104 (2d Cir. 2011) (per curiam). A

question of material fact does not exist merely because the plaintiff disagrees with the deposition

testimony and documentary evidence produced by the defendant. See Anderson, 477 U.S. at

247-48. “When the moving party has carried its burden under Rule 56(c), its opponent must do

more than simply show that there is some metaphysical doubt as to the material facts.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). The nonmoving party

must put forth specific facts showing there is a genuine issue for trial. Anderson v. National

Grid, PLC, 93 F. Supp. 3d 120, 130 (E.D.N.Y. 2015) (Bianco, J.) (quoting Matsushita, 475 U.S.

at 574).

Collateral Estoppel

“Under collateral estoppel, once an issue is actually and necessarily determined by a

court of competent jurisdiction, that determination is conclusive in subsequent suits based on a

different cause of action involving a party to the prior litigation.” Montana v. United States, 440

U.S. 970, 973 (1979). “Collateral estoppel, like the related doctrine of res judicata, has the dual

purpose of protecting litigants from the burden of relitigating an identical issue with the same

party or his privy and of promoting judicial economy by preventing needless litigation.”

Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326 (1979).

As the preclusive effect of a state-court judgment in federal law is determined by state

law, New York law governs the preclusive effect of a New York state court judgment. See

Migra v. Warren City School District Board of Education, 465 U.S. 75, 81 (1984) (“[T]he

preclusive effect in federal court of petitioner’s state-court judgment is determined by [state]

law.”). Under New York law, the doctrine of collateral estoppel is applicable upon a showing of

two factors: “[f]irst, the identical issue necessarily must have been decided in the prior action and

be decisive of the present action, and second, the party to be precluded from relitigating the issue

must have had a full and fair opportunity to contest the prior determination.” Kaufman v. Eli

Lilly & Co., 65 N.Y.2d 449, 455 (1985).

III. DISCUSSION

Plaintiff’s Motion

Plaintiff seeks summary judgment on her claims against the Espositos with respect to

liability. ECF No. 62. Plaintiff argues that since Defendant Michael Esposito pled guilty to

unlawfully surveilling her, Plaintiff is entitled to summary judgment on her claims of (1) hostile

work environment on the basis of sex and/or gender; (2) constructive discharge; and (3) intentional

infliction of emotional distress. Plaintiff argues she has shown the Espositos’ liability on each of

her claims as a matter of law, relying primarily on the doctrine of collateral estoppel. The

Espositos disagree.

Collateral Estoppel

As an initial matter, the parties dispute whether the doctrine of collateral estoppel applies

to Defendant Michael Esposito’s criminal plea. Plaintiff argues Defendant Michael Esposito is

estopped from litigating the conduct underlying this action. The Espositos disagree and argue

Plaintiff cannot rely on Defendant Michael Esposito’s guilty plea for estoppel purposes, as “there

is not a precise identity of issues between Plaintiff’s claims and Mr. Esposito’s criminal plea.”

Indiv. Defs.’ Mem. in Opp., ECF No 64, at 10.

Having considered the parties’ arguments on this point, the Court finds the doctrine of

collateral estoppel applies to Defendant Michael Esposito’s guilty plea. “Where a criminal

conviction is based upon facts identical to those in issue in a related civil action, the plaintiff in

the civil action can successfully invoke the doctrine of collateral estoppel to bar the convicted

defendant from litigating the issue of his liability.” McDonald v. McDonald, 193 A.D.2d 590, 590

(2d Dep’t 1993). Even when a full criminal trial has not taken place, a guilty plea has preclusive

effect under New York law when made “in a formal court proceeding following a thorough

allocution establishing that the defendant understands the rights he is waiving and that he has

admitted each of the essential elements of the crime charged.” Halyalkar v. Board of Regents of

State of New York, 72 N.Y.2d 261, 269 (1988). The Epositos miss the point by arguing there is

not a “precise identity of issues” between Plaintiff’s civil claims and Michael Esposito’s criminal

plea. See Doe v. Doe, 16-CV-0332, 2017 WL 3025885, at *5 (S.D.N.Y. July 14, 2017) (Román,

J.) (“Defendant misidentifies the issue that must be identical for the doctrine of collateral estoppel

to apply. It is the conduct complained of in both cases (Defendant’s unlawful surveillance of

Plaintiff) that must be identical for purposes of collateral estoppel, not the named cause of action

against Defendant.”).

Accordingly, the Court determines the doctrine of collateral estoppel applies to Defendant

Michael Esposito’s plea. With this in mind, the Court addresses each of Plaintiff’s claims, and,

for the reasons below, the Court grants Plaintiff summary judgment with respect to liability on

each of her claims against the Individual Defendants.

Hostile Work Environment, Constructive Discharge (Defendants Michael Esposito,

Danielle Esposito)

NYSHRL

Plaintiff brings hostile work environment and constructive discharge claims under the

New York State Human Rights Law (“NYSHRL”) against both Individual Defendants. “The

NYSHRL allows for individual liability under two theories: (1) if the defendant has ‘an

ownership interest’ in the employer or has ‘the authority to hire and fire employees,’ and (2) if

the defendant aided and abetted the unlawful discriminatory acts of others.” E.E.O.C. v. Suffolk

Laundry Servs., Inc., 48 F. Supp. 3d 497, 523 (E.D.N.Y. 2014) (Brodie, J.) (citing Tomka v.

Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995); N.Y. Exec. Law § 296(1), 13; and N.Y. Exec.

Law § 296(6)). Here, it is undisputed both Michael Eposito and Danielle Esposito had authority

to hire and fire Plaintiff. See Indiv. Defs. R. 56.1 St., ECF No. 60-2, ¶ 3 (“In early 2021, Mr. and

Mrs. Esposito hired Plaintiff as an au pair.”). Thus, both Individual Defendants are subject to the

NYSHRL’s requirements.

Courts “review discrimination claims brought under the NYSHRL according to the same

standards that we apply to Title VII discrimination claims.” Pucino v. Verizon Wireless

Commc’ns, 618 F.3d 112, 117 n.2 (2d Cir. 2010). To make out a hostile work environment

claim under Title VII, a plaintiff must allege facts demonstrating the treatment in question: “(1)

is objectively severe or pervasive—that is. . . creates an environment that a reasonable person

would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives

as hostile or abusive; and (3) creates such an environment because of the plaintiff’s sex.” Patane

v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (internal citation and quotation marks omitted). The

“discriminatory intimidation” of the plaintiff must be “sufficiently severe or pervasive to alter

the conditions of his or her work environment.” Rojas v. Roman Catholic Diocese of Rochester,

660 F.3d 98, 106 (2d Cir. 2011). The severity of discriminatory conduct “has objective and

subjective elements: the misconduct shown must be ‘severe or pervasive enough to create an

objectively hostile or abusive work environment,’ and the victim must also subjectively perceive

that environment to be abusive.” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (internal

citation omitted). Plaintiffs may also plead constructive discharge arising out of particularly

pronounced hostile work environments. For example, “an employee is constructively discharged

when his employer, rather than discharging him directly, intentionally creates a work atmosphere

so intolerable that he is forced to quit involuntarily.” Petrosino v. Bell Atlantic, 385 F.3d 210,

229 (2d Cir. 2004).

Plaintiff meets those standards here. Defendant Michael Esposito engaged in an

appalling course of conduct by installing a hidden camera above Plaintiff’s bed and recording

Plaintiff’s movements in her bedroom—a room where she was frequently nude, dressing, and

undressing, and rightly expected privacy. Courts in New York have held similar conduct

constitutes a prima facie hostile work environment in violation of the NYSHRL. In Sawicka v.

Catena, for example, the New York Appellate Division for the Second Department ruled in favor

of female plaintiffs whose boss placed a hidden camera in their workplace restroom. 79 A.D.3d

848, 850 (2d Dep’t 2010) (“The plaintiffs’ claims that they were subjected to a hostile work

environment, based on sex, which led to their constructive discharge, were supported by

evidence that Catena deliberately made their working conditions so intolerable by installing a

video camera in the restroom, that a reasonable person in their position would have felt

compelled to resign.”).

Relying on Sawicka, a New York supreme court similarly determined a plaintiff

established a hostile work environment claim under the NYSHRL where a physician at the

medical office where plaintiff worked installed a hidden camera in the office’s restroom.

Hughes v. Pacienza, 939 N.Y.S.2d 740 (Sup. Ct. 2011). That court explained the defendant’s

“conduct of concealing a camera within an air purifier and informing plaintiff that said device is

an air purifier, evidence[d] [his] conduct was covert and unwelcome,” that the plaintiff’s “work

was also affected as evidenced by her reaction, and the fact that she immediately ended her

employment with defendants,” and that the defendant “was found liable for such conduct as

supported by the felony complaint” in the criminal unlawful surveillance case against the

defendant. Id. at *6. The court concluded a “reasonable person would find the act of

surreptitiously observing an individual’s private bathroom function to be an abusive act,” and

that the plaintiff “by her reaction after discovery of the unlawful surveillance has demonstrated

that she subjectively perceived the environment to be hostile.” Id. See also Doe v. Johnson, 16-

CV-750, 2016 WL 11529997, at *1 (S.D. Cal. Dec. 14, 2016) (Whelan, J.) (finding “Plaintiffs’

allegations satisfy the subjective and objective elements of a [Title VII] hostile work

environment claim” where female plaintiffs alleged their male supervisor installed a hidden

camera in drain of women’s restroom which captured images including “a female’s

undergarment-clad breast as she changed her shirt in the restroom, and images of part of a

female’s naked buttock as she prepared to sit on the toilet and again as she stood”).

The Espositos attempt to distinguish cases involving hidden cameras in restrooms from

the hidden camera placed in Plaintiff’s bedroom. See Indiv. Defs. Opp. at 15-16. However, the

Court is unconvinced by these arguments. The actions that take place in a bedroom are

comparably intimate to those that occur in a restroom. Plaintiff was often nude or undressing in

her bedroom, as were the plaintiffs in Hughes, Sawicka, and Johnson in their workplaces’

restrooms. And, just like the defendants in those cases, Defendant Michael Esposito

surreptitiously recorded Plaintiff when she was physically vulnerable and believed she was

alone. The Espositos fail to draw any principled distinction between unlawfully surveilling in a

restroom versus a bedroom. As such, Plaintiff has made out that her workplace was objectively

hostile, and that she subjectively perceived it to be so. After all, Plaintiff immediately brought

the smoke detector and SIM card to the police, and she later testified to the mental toll she has

experienced following Michael Esposito’s conduct. See Pl. Dep., ECF No. 62-6, at 17:16-18 (“I

suffer from depression[,] anxiety and stress”).

Further, Plaintiff has established the hostile work environment created by Michael

Esposito’s unlawful surveillance led to her constructive discharge. As the United States

Supreme Court has explained, the relevant inquiry “is objective: Did working conditions become

so intolerable that a reasonable person in the employee’s position would have felt compelled to

resign?” Pennsylvania State Police v. Suders, 542 U.S. 129, 141 (2004). Work conditions are

“intolerable” if they are so difficult or unpleasant that a reasonable person in the employee’s

shoes would have felt compelled to resign. See Whidbee v. Garzarelli Food Specialties, Inc.,

223 F.3d 62, 73 (2d Cir. 2000).

Here, the conditions of Plaintiff’s workplace meet that standard. The Hughes and

Sawicka courts determined the defendants in each of those cases made working conditions so

intolerable by installing hidden cameras in office restrooms that the plaintiffs were forced to

resign. See Hughes, 939 N.Y.S.2d 740 at *6; Sawicka, 79 A.D.3d at 850. Here, too, a

reasonable person in Plaintiff’s position would feel compelled to resign upon discovering

Defendant Michael Esposito’s severe intrusion of Plaintiff’s privacy. As such, Plaintiff has

established both her hostile work environment and constructive discharge claims against the

Espositos under NYSHRL.

NYCHRL

The New York City Human Rights Law (“NYCHRL”) “was intended to be more

protective than the state and federal counterpart.” Bermudez v. City of New York, 783 F. Supp.

2d 560, 579 (S.D.N.Y. 2011) (McMahon, J.). “[I]f a claim is viable under the NYSHRL, it is as

a matter of law viable under the NYCHRL, and there is no need for further inquiry.” Pryor v.

Jaffe & Asher, LLP, 992 F. Supp. 2d 252, 260 (S.D.N.Y. 2014) (Failla, J.) (internal citation

omitted). The Court has already determined Plaintiff has established her hostile work

environment and constructive discharge claims under the NYSHRL. Accordingly, the Court

finds Plaintiff has made out the same claims under the NYCHRL, as well. Id. at 260.

Intentional Infliction of Emotional Distress (Defendant Michael Esposito)

Plaintiff also claims Defendant Michael Esposito is liable for intentional infliction of

emotional distress. The Restatement [Second] of Torts § 46 provides “[o]ne who by extreme and

outrageous conduct intentionally or recklessly causes severe emotional distress to another is

subject to liability for such distress.” Under New York law, a plaintiff must prove four elements

to recover for the intentional infliction of emotional distress: “(i) extreme and outrageous conduct;

(ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress;

(iii) a causal connection between the conduct and injury; and (iv) severe emotional distress.”

Howell v. New York Post Co., Inc., 81 N.Y.2d 115, 121 (1993). The Howell court noted the tort

is “as limitless as the human capacity for cruelty.” Id. at 122. A plaintiff claiming intentional

infliction of emotional distress must demonstrate the defendant’s conduct was “so outrageous in

character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be

regarded as atrocious, and utterly intolerable in a civilized community.” Murphy v. American

Home Products Corp., 58 N.Y.2d 293, 303 (1983) (quoting Restatement [Second] of Torts § 46,

comment d).

All four elements of the tort are satisfied here. The first two elements—(i) extreme and

outrageous conduct, and (ii) the intent to cause, or disregard of a substantial probability of causing,

severe emotional distress—are established by Defendant Michael Esposito’s guilty plea.

Defendant acted in an extreme and outrageous manner by surreptitiously filming Plaintiff in her

bedroom, including when she was naked. See Doe, 2017 WL 3025885, at *6 (“Defendant acted

in an extreme and outrageous manner when he filmed Plaintiff in a situation where she had a

reasonable expectation of privacy”). Moreover, Defendant’s criminal allocution establishes he

acted intentionally in installing a hidden camera and recording Plaintiff in her bedroom thereby

establishing the second element of this claim. See Plea Tr., ECF No. 62-4, at 14-15 (reporting

Michael Esposito’s allocution that for his “own amusement [he] intentionally used and installed

an imaging device to surreptitiously view and record [Plaintiff] dressing and undressing or the

sexual or other intimate parts of [Plaintiff] at a place and time when [Plaintiff] had a reasonable

expectation of privacy and without [Plaintiff’s] knowledge or consent.”).

To establish the remaining two elements of the tort, Plaintiff must show Defendant Michael

Esposito’s admitted conduct caused her alleged injuries, and that those injuries were severe.

However, New York courts are divided on the issue of whether medical evidence of a plaintiff’s

injuries is necessary to determine the causation and severity of those injuries. Some courts have

stated claims of emotional injuries “must be supported by medical evidence, not the mere recitation

of speculative claims.” Walentas v. Johnes, 257 A.D.2d 352, 353 (1st Dep’t 1999); see also

Biberaj v. Pritchard Industries, Inc., 859 F. Supp. 2d 549, 565 (S.D.N.Y. 2012) (Gardephe, J.)

(finding plaintiff’s claim she became “ill” and had to leave work early because of her coworkers’

insults was too speculative to survive defendant’s motion to dismiss without medical evidence of

causation). However, other courts applying New York law have recognized “[i]n some cases, the

allegations are such that severe emotional distress requires no medical evidence.” Sylvester v. City

of New York, 385 F. Supp. 2d 341, 444 (S.D.N.Y. 2005) (Koeltl, J.). When there are “special

circumstances out of which would arise ‘an especial likelihood of genuine and serious mental

distress ... [that would serve] as a guarantee that the claim is not spurious,’” these courts have

forgone the need for medical proof of causation or severity of emotional injuries. Hering v.

Lighthouse 2001, LLC, 21 A.D.3d 449, 451 (2d Dep’t 2005) (quoting Johnson v. State of New

York, 37 N.Y.2d 378, 382 (1975)). Indeed, the Second Department has found “[w]hile evidence

of a specific medical diagnosis or course of treatment may be relevant to the issue of damages, it

is not essential to the prosecution of [] an inherently genuine claim.” Plunkett v. NYU Downtown

Hospital, 21 A.D.3d 1022, 1023 (2d Dep’t 2005); see also Massaro v. Charles J. O’Shea Funeral

Home, 292 A.D.2d 349, 351 (2d Dep’t 2002) (finding “the fact that [plaintiff] ha[d] not sought

psychological counseling for his alleged injuries, while relevant to the issue of damages, [did] not

necessarily preclude his recovery”).

Defendant Michael Esposito argues Plaintiff cannot make out her tort claim because she

has little proof she suffered severe emotional distress or that Defendant Michael Esposito caused

her distress. See Indiv. Defs. Opp. at 16-17. The Court disagrees. First, Plaintiff testified to

experiencing depression, anxiety, and stress stemming from her discovery of the camera. Pl. Dep.

at 17:16-18. More important, though, the Court finds this case is one in which “evidence of a

specific medical diagnosis or course of treatment” is not essential to Plaintiff’s claim. Rather,

Defendant Michael Esposito has admitted conduct entailing an “especial likelihood of genuine and

serious mental distress” on the part of Plaintiff sufficient to overcome the need for medical

corroboration. See Johnson, 37 N.Y.2d at 382; see also Doe, 2017 WL 3025885, at *7 (finding

medical corroboration unnecessary to prove severe distress where defendant filmed plaintiff

engaging in sexual intercourse); Sawicka, 79 A.D.3d at 850 (“The evidence is sufficient, as a

matter of law, to establish that [surreptitiously filming plaintiffs in the restroom] caused plaintiffs

severe emotional distress.”).

Moreover, expert medical testimony is unnecessary to establish causation and severity

where the factfinder “must draw only a common sense causal connection between a plaintiff's

injury and one precipitating cause.” Young v. Sw. Airlines Co., 409 F. Supp. 3d 110, 116 (E.D.N.Y.

2017) (DeArcy Hall, J.). The Court determines this is such a case. It takes only common sense to

connect Plaintiff’s anxiety and depression to Defendant Michael Eposito’s outrageous invasion of

Plaintiff’s privacy. See Doe, 2017 WL 3025885, at *8 (“[Depression, humiliation and anxiety] are

injuries that a reasonable finder of fact would logically attribute to Defendant’s abhorrent conduct

[of filming plaintiff during sexual intercourse and distributing it to others], even absent medical

corroboration of such a connection.”). As such, Plaintiff’s injuries satisfy the remaining elements

of the tort of intentional infliction of emotional distress. Accordingly, Plaintiff is granted summary

judgment on the issue of liability on her intentional infliction of emotional distress claim. See id.

Individual Defendants’ Motion

The Espositos move for summary judgment on Plaintiff’s claims against them. ECF No.

60. The Court has just explained it grants summary judgment in Plaintiff’s favor on these claims

and rejects the Espositos’ arguments in opposition. As such, the Espositos’ Motion is denied in

its entirety.

Defendant Cultural Care’s Motion

Defendant Cultural Care also moves for summary judgment on Plaintiff’s claims against

it. ECF No. 61. These include employment discrimination claims under Title VII, the NYSHRL,

and the NYCHRL; aiding and abetting claims under the NYSHRL and NYCHRL; an interference

claim under the NYCHRL; and a negligence claim. For the following reasons, the Court denies

Cultural Care’s Motion with respect to Plaintiff’s employment discrimination claims, but grants

Cultural Care’s Motion regarding Plaintiff’s aiding and abetting, interference, and negligence

claims.

Employment Discrimination Claims

Cultural Care’s Employment of Plaintiff

Cultural Care argues the Court should grant summary judgment in its favor because “there

is simply no evidence, direct, circumstantial, or otherwise, which exhibits that Cultural Care

employed Plaintiff.” Cultural Care Mem., ECF No 61-1, at 10. Instead, Cultural Care argues the

“relationship between Cultural Care and Plaintiff was that of a program sponsor and Cultural Care

solely acted to facilitate the placement of Plaintiff with [the Espositos].” Id. at 10-11. Plaintiff

disagrees and argues, at a minimum, she has shown issues of material fact exist regarding whether

Cultural Care was Plaintiff’s joint employer and thus whether Cultural Care can be held liable for

the Espositos’ conduct. Pl. Mem. in Opp., ECF No. at 7-11.

For a corporate defendant to be liable for alleged discrimination under Title VII, the

NYSHRL, and the NYCHRL, the defendant must qualify as the plaintiff’s “employer.” See

Farmer v. Shake Shack Enters., LLC, 473 F. Supp. 3d 309, 321 (S.D.N.Y. 2020) (Engelmayer, J.).

A corporate defendant need not be a plaintiff’s direct employer to be liable under these statutes.

Id. at 322-23. Rather, under the joint employer doctrine, “an employee, formally employed by one

entity, who has been assigned to work in circumstances that justify the conclusion that the

employee is at the same time constructively employed by another entity, may impose liability for

violations of employment law on the constructive employer, on the theory that this other entity is

the employee’s joint employer.” Arculeo v. On-Site Sales & Mktg., LLC, 425 F.3d 193, 198 (2d

Cir. 2005). The Second Circuit recently addressed the joint employer inquiry in the Title VII

context, “concluding that non-exhaustive factors drawn from the common law of agency, including

control over an employee’s hiring, firing, training, promotion, discipline, supervision, and

handling of records, insurance, and payroll, are relevant to this inquiry.” Felder v. United States

Tennis Ass’n, 27 F.4th 834, 838 (2d Cir. 2022).1 A joint or constructive employer relationship

exists “when two or more entities, according to common law principles, share significant control

of the same employee”—that is, when “an entity other than the employee’s formal employer has

power to pay an employee’s salary, hire, fire, or otherwise control the employee’s daily

employment activities.” Id. at 843-44. “[T]he exercise of control is the guiding indicator.” Id. at

844.

The Court finds there is a factual question about whether Cultural Care served as Plaintiff’s

joint employer. The contract between Cultural Care and Plaintiff indicates Cultural Care has the

power to hire and terminate au pairs, as well as to transfer au pairs between host families.2 See

Cultural Care Mem., Ex. 7, ECF No. 61-2, at 109-10. The contract, which Plaintiff signed, states,

1 This inquiry also applies in the NYSHRL and NYCHRL contexts. See Farmer, 473 F. Supp. 3d at 321 (noting

employer-employee tests from Title VII are applied to the NYSHRL and NYCHRL).

2 At oral argument, counsel for Cultural Care claimed the contract was between a different corporate entity and au

pairs, as the contract lists the relevant entity as “Cultural Care (registered business name of International Care,

Ltd.)”. See Cultural Care Mem., ECF No. 61-2, at 109-10. However, counsel stated he was unsure of the exact

corporate relationship between Cultural Care and International Care, Ltd. As the Court stated during oral argument,

and as it reiterates now, it is unconvinced by Cultural Care’s attempt to separate itself from the contract. The

contract repeatedly and solely refers to the hiring entity as “CC”—that is, Cultural Care.

“I understand that if [Cultural Care (“CC”)] determines that my emotional or physical state does

not make me suitable for providing quality childcare, I will be removed from the Program.” Id. at

110. The contract continues, “I also understand that should I marry or become pregnant while on

the Program I will also be removed from the Program.” Id. The contract further requires au pairs

to acknowledge:

“I understand that I may be terminated from the Program if I do not successfully complete

the Program requirements and uphold Program expectations for reasons including, but not

limited to, the following: leaving the host family without prior consent from CC; engaging

in behavior that CC deems inappropriate during the Program duration, performance reasons

including but not limited to breaking host family rules, neglectful or inappropriate behavior

towards the children, etc.; non-participation in training, not fulfilling educational credit,

non-attendance at monthly meetings, or if I in any way violate this Agreement.” Id.

The contract includes additional circumstances under which Cultural Care can terminate au pairs’

employment. Moreover, the contract permits Cultural Care to move au pairs to different host

families, id. at 109, and also determines an applicant’s eligibility for the program in the first place,

id. In sum, the contract gives Cultural Care substantial authority over au pairs’ employment,

precluding summary judgment on the basis of a lack of employment relationship between Cultural

Care and Plaintiff. Pappas v. XP Controle Participacoes S.A., 19-CV-11137, 2023 WL 317353,

at *5 (S.D.N.Y. Jan. 18, 2023) (Woods, J.) (“[A]s both Felder and the general common law of

agency that it drew upon recognize, the ability to significantly control an employee's

employment—even if that control is not constantly exercised—can create an employment

relationship.”). See also Morales Posada v. Cultural Care, Inc., 554 F. Supp. 3d 309, 322 (D.

Mass. 2021), aff’d on other grounds sub nom. Posada v. Cultural Care, Inc., 66 F.4th 348 (1st Cir.

2023) (finding plaintiffs adequately alleged Cultural Care was their employer in Fair Labor

Standards Act case since “Cultural Care . . . retains full discretion of whether to end an au pair’s

placement, whether to end an au pair’s participation in the program entirely, and whether to permit

their participation in the first place”).

Cultural Care’s Alleged Discrimination

Cultural Care next argues that, even if the Court finds Cultural Care employed Plaintiff,

the Court should still grant summary judgment in Cultural Care’s favor because it did not create a

hostile work environment or constructively discharge Plaintiff. Cultural Care Mem. at 14-16 (“If

Plaintiff was subjected to any discrimination or hostile work environment, it came solely at the

hands of Co-Defendant Michael Esposito.”).

However, this argument fails. As the Court just described, a factual question exists

regarding the employment relationship between Plaintiff and Cultural Care. Accordingly, whether

the Individual Defendants’ discriminatory conduct can be imputed to Cultural Care hinges on that

question of fact.

Aiding and Abetting Claims

Cultural Care also moves for summary judgment on Plaintiff’s aiding and abetting claims

under the NYSHRL and the NYCHRL. Cultural Care argues summary judgment is appropriate

on these claims as there is no evidence Cultural Care was aware of, let alone aided and abetted,

Defendant Michael Esposito’s criminal behavior. Cultural Care Mem. at 16-17. Plaintiff offers

no response in opposition to this portion of Cultural Care’s motion. See generally Pl. Mem. in

Opp., ECF No. 66.

Both the NYSHRL and the NYCHRL prohibit “aid[ing], abet[ting], incit[ing],

compell[ing] or coerc[ing] the doing” of any unlawful acts of discrimination under either title,

including sexual harassment and retaliation. N.Y. Exec. Law § 296(6); N.Y.C Admin. Code § 8-

107(6). The same standard governs aiding and abetting claims under the NYSHRL and the

NYCHRL “because the language of the two laws is virtually identical.” Feingold v. New York,

366 F.3d 138, 158 (2d Cir. 2004) (internal quotation and citation omitted). To state a claim for

aiding and abetting unlawful harassment, discrimination, or retaliation, a plaintiff must instead

plead that the defendant “actually participate[d]” in such unlawful conduct by the employer.

Farmer, 473 F. Supp. 3d at 337 (internal citations and quotations omitted). Further, aiding and

abetting “liability requires that the aider and abettor share the intent or purpose of the principal

actor.” Fried v. LVI Servs., Inc., 10-CV-9308, 2011 WL 2119748, at *8 (S.D.N.Y. May 23, 2011)

(Rakoff, J.).

Here, the Court agrees with Cultural Care: Plaintiff has not put forth evidence that Cultural

Care was aware of Defendant Michael Esposito’s criminal conduct, let alone that it shared his

intent or participated in his surveillance scheme. Instead, the record indicates Cultural Care was

unaware of Esposito’s conduct until his arrest, at which point his surreptitious surveillance had

ended. See Cultural Care Mem., Ex. 4 (Michael Esposito Dep.), ECF No 61-2, at 15:8-14 (“Q: At

any time, to your knowledge, did you discuss the smoke detector, the camera, or anything with

anybody from Cultural Care? A: No. Q: Was Cultural Care in any way advised or aware that you

had a camera in Kelly’s bedroom? A: No.”); see also McHenry v. Fox News Network, LLC, 510

F. Supp. 3d 51, 85 (S.D.N.Y. 2020) (Engelmayer, J.) (explaining aiding and abetting claim failed

because “by the date [the defendant] was first on notice of such conduct, the harassment had

ended”). Accordingly, the Court grants summary judgment in favor of Cultural Care on Plaintiff’s

aiding and abetting claims under the NYSHRL and the NYCHRL.

Interference Claim

Cultural Care next moves for summary judgment on Plaintiff’s interference claim under

the NYCHRL, arguing there is no evidence Cultural Care interfered with or took any other adverse

action relating to Plaintiff’s participation in the au pair program. Cultural Care Mem. at 18. Again,

Plaintiff offers no response to this portion of Cultural Care’s Motion. See generally Pl. Mem. in

Opp.

The NYCHRL provides “[i]t shall be an unlawful discriminatory practice for any person

to coerce, intimidate, threaten or interfere with, or attempt to coerce, intimidate, threaten or

interfere with, any person in the exercise or enjoyment of, or on account of such person having

aided or encouraged any other person in the exercise or enjoyment of, any right granted or

protected pursuant to this section.” N.Y.C Admin. Code § 8-107(19). “A threat is a required

element of a claim a claim for violation of Section 8-107(19).” Cadet v. All. Nursing Staffing of

New York, Inc., 632 F. Supp. 3d 202, 236 (S.D.N.Y. 2022) (Failla, J.). “As defined in the

Second Circuit, a ‘threat’ is the creation of ‘[a]n impression of impending injury.’” Sletten v.

LiquidHub, Inc., 13-CV-1146, 2014 WL 3388866, at *5 (S.D.N.Y. July 11, 2014) (Buchwald, J.)

(quoting United States v. Davila, 461 F.3d 298, 302 (2d Cir. 2006)).

Again, the Court agrees with Cultural Care on this point. The record is entirely devoid of

evidence that Cultural Care interfered with Plaintiff’s participation in the au pair program,

including any evidence of a threat as required to plead an interference claim under the NYCHRL.

Accordingly, the Court grants summary judgment in favor of Cultural Care on Plaintiff’s

interference claim.

Negligence Claim

Finally, Cultural Care argues Plaintiff’s negligence claim must fail because Plaintiff

released Cultural Care from tort claims related to her employment.3 Tellingly, Plaintiff offers no

response to this argument; in fact, she does not acknowledge the existence of the release in her

opposition to Cultural Care’s Motion. See generally Pl. Mem. in Opp.; see also Cultural Care

Reply, ECF No. 69, at 10 (“As a threshold matter, Plaintiff’s Opposition wholly disregards the

enforceability of the Au Pair Agreement’s release.”).

In New York, interpretation of a release is governed by contract law. See Nikci v. Quality

Bldg. Servs., 995 F. Supp. 2d 240, 250 (S.D.N.Y. 2014) (Koeltl, J.). Rules of contract “provide

that ‘[c]ourts applying New York law will enforce valid releases which are clear and

unambiguous on their face and which were knowingly and voluntarily entered into and were not

the product of fraud, duress, or undue influence.’” Id. (quoting DiFilippo v. Barclays Capital,

Inc., 552 F. Supp. 2d 417, 426 (S.D.N.Y. 2008) (Marrero, J.)).

The Court finds no reason to set aside the au pair agreement’s release here. The release

states:

“I agree to irrevocably, unconditionally, and fully remise, release and forever discharge

CC . . . from any and all claims or causes of action which I have or may hereafter have,

which arise out of illness, injury, damage or loss of any other kind to me or my property

resulting from or during participation in the Program. This includes, without limitation,

my performance of services for and involvement with the host family, regardless of how

such illness, injury, damage or loss may arise. I further agree to indemnify and hold

harmless the Released Parties from and against any losses, claims, damages or liabilities

related to or arising out of my participation in the Program, including (without

limitation) any illness, injury or damage to me, that my host family causes, that any third

party causes, that I cause or to which I contribute, and any illness, injury or damage to

my host family which I cause or to which I contribute.” Cultural Care Mem., Ex. 7, ECF

No. 61-2, at 110 (emphasis added).

3 Of course, this release cannot apply to Plaintiff’s statutory employment discrimination claims. See Alexander v.

Gardner-Denver Co., 415 U.S. 36, 51 (1974) (“[T]here can be no prospective waiver of an employee’s rights under

Title VII.”).

Plaintiff signed the contract containing this release on April 14, 2020. See id. The language of

the release clearly applies to claims for “any illness, injury or damage to [Plaintiff]” “related to

or arising out of [her] participation in the Program,” including any injury caused by Plaintiff’s

host family. Id. Thus, the Court concludes the language of the release is unambiguous.

Plaintiff has offered no evidence, nor makes any argument, that she entered into the

release as a result of “fraud, duress, or undue influence.” See Nikci, 995 F. Supp. 2d at 250.

Without such evidence, the Court finds no reason to set aside the valid release between Cultural

Care and Plaintiff. As such, the Court grants summary judgment in favor of Cultural Care on

Plaintiff’s negligence claim.

CONCLUSION

For the foregoing reasons, the Court GRANTS Plaintiff’s Motion for Summary Judgment,

DENIES the Espositos’ Motion for Summary Judgment, and DENIES in part and GRANTS in

part Cultural Care’s Motion for Summary Judgment. The Clerk of Court is respectfully directed

to terminate the motions pending at ECF Nos. 60, 61, and 62.

SO ORDERED.

s/WFK

____________________________

HON. WILLIAM F. KUNTZ, II

UNITED STATES DISTRICT JUDGE

Dated: December 13, 2023

Brooklyn, New York