| Clayton v Best Buy Co., Inc. |
| 2008 NY Slip Op 01397 [48 AD3d 277] |
| February 14, 2008 |
| Appellate Division, First Department |
| Natoya Clayton, Appellant, v Best Buy Co., Inc., et al.,Respondents. |
—[*1] Proskauer Rose LLP, New York City (Lloyd B. Chinn of counsel), and Robins, Kaplan,Miller & Ciresi L.L.P., Minneapolis, Minn. (Stephen F. Simon of the bar of the State ofMinnesota, admitted pro hac vice, of counsel), for respondents.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered July 26, 2006, whichgranted defendants' motion for summary judgment dismissing the complaint, unanimouslymodified, on the law, to reinstate plaintiff's cause of action for retaliation as against defendantsBest Buy Co. and Prada, and otherwise affirmed, without costs.
The claims for sex discrimination and sexual harassment under the New York Human RightsLaw were properly dismissed because, under that statute, "[a]n employer cannot be held liable foran employee's discriminatory act unless the employer became a party to it by encouraging,condoning, or approving it" (Matter of State Div. of Human Rights v St. Elizabeth'sHosp., 66 NY2d 684, 687 [1985] [internal quotation marks omitted]). There is no evidencethat defendant Best Buy Co. encouraged, condoned, or approved any harassing conduct. To thecontrary, when plaintiff reported an incident concerning one of the individual defendants, BestBuy immediately took action, reprimanding him on the same day that the incident occurred andwarning him that another similar incident would result in his dismissal. Furthermore, there is noevidence that the subject workplace was one permeated with "discriminatory intimidation,ridicule, and insult that [was] sufficiently severe or pervasive to alter the conditions of[plaintiff's] employment and create an abusive working environment" (Forrest v Jewish Guild for the Blind, 3NY3d 295, 310 [2004] [internal quotation marks omitted]). Nor do plaintiff's allegationsconcerning the sexual and inappropriate remarks made by various Best Buy employees showconduct sufficiently outrageous to support a claim of intentional infliction of emotional distress(see Howell v New York Post Co., 81 NY2d 115, 122 [1993]). However, issues of factexist as to whether defendants retaliated against plaintiff by reducing her hours, saying thatbusiness had slowed, even though she was considered a good employee and no other cashiers'hours were reduced, and whether plaintiff was in fact discharged in retaliation for her sexualharassment complaint (see Forrest, 3 NY3d at 312-313). Concur—Andrias, J.P.,Saxe, Nardelli and McGuire, JJ.
Reargument granted and, upon reargument, the decision and order of this Court entered onNovember 8, 2007 (45 AD3d 322 [2007]) recalled and vacated and a new decision and ordersubstituted therefor. [*2]