ANSWER TO COMPLAINT - 19 -
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW YORK EASTERN DISTRICT CINDY WILD Plaintiff, v. HOOLIGANS, INC., et ai., Defendants. ) ) ) ) ) ) ) ) ) CASE NO. 04 C 1175 JURY DEMAND ANSWER OF HOOLIGAN'S, INC. TO COMPLAINT NOW COMES the Defendant, HOOLIGANS, INC., by and through its attorneys, and in answer to the Complaint filed by the Plaintiff, states as follows: JURISDICTION 1. The jurisdiction of this Honorable Court is invoked pursuant to Title VII, 42 USc. 2000 et seq. The matter in controversy exceeds the sum of $50,000 exclusive ofinterest and costs. The Court also is requested to exercise its supplemental jurisdiction to hear pendant state claims under the same action. I. Defendant admits only that plaintiff seeks to invoke the jurisdiction of this Court pursuant to Title VII, 42 U.S.C. 2000 et seq., and the Court's supplemental jurisdiction but denies any allegation that it violated Title VII and the remaining allegations. - 20-
PARTIES 2. CINDY WILD (sometimes hereinafter referred to as "Plaintiff'), a female, at all times relevant to this Complaint was an employee of Defendant, Hooligans, Inc." a resident ofthe State ofnew York, and a citizen ofthe United States ofamerica. Defendant admits these allegations upon information and belief. 3. HOOLIGANS INC. (sometimes hereinafter referred to as "Defendant Hooligans") at all times relevant to this Complaint was a corporation licensed, to do business in the State ofnew York. Defendant admits these allegations. 4. WORKERS UNION OF AMERICA (sometimes hereinafter referred to as "Defendant Union") at all times was the exclusive bargaining representative for the kitchen staff and servers employed by Defendant Hooligans. Defendant admits these allegations. 5. At all relevant times, Defendants Hooligans and the Union were parties to a collective bargaining agreement that included a grievance and arbitration procedure and a provision that prohibited discrimination in violation ofthe law. Defendant admits these allegations. - 21 -
FACTS 6. Defendant Hooligans required all of its female servers to wear a uniform consisting ofshort, tight-fitting shorts, pantyhose, and a tight-fitting t-shirt. Defendant admits that it required all female servers to wear a uniform consisting of shorts, pantyhose and a t-shirt, but deny that the adjectives "short" and "tight fitting" conform to Federal Rule of Civil Procedure 8(e) and, further answering, are immaterial and impertinent and in violation of Federal Rules of Civil Procedure 12(f). 7. The female servers are designated by Defendant and nationally advertised as "Hooligans Girls." Defendant admits that the female servers of Hooligans are designated as "Hooligans Girls" and that they nationally advertise same. 8. The policy of Defendant Hooligans dictates that the female servers change into their required uniforms on site, in a changing room provided by the company. Defendant admits that a changing room is provided for the female servers of Hooligans in Brooklyn Heights electing to use it to change into their uniforms on site, but deny that female servers are required to change into their unifonns on site, or that Defendant has a policy dictating that female servers use the changing room. - 22 -
9. A changing room was provided for the Hooligans Girls to change into their tight fitting uniforms before commencing work and to change out ofthe uniforms at the completion oftheir respective tour ofduty. Defendant admits that a changing room was provided for the convenience of employees at Hooligans in Brooklyn Heights, including Hooligans Girls electing to use it to change into their uniforms before the start of the start of their shifts and to change out of their uniforms at the end of their shifts, but deny that the adjective "tight fitting" conforms with F.R.C.P. 8(e), and, further answering, is immaterial and impertinent and in violation off.r.c.p. 12(f). 10. In or about May, 2002, a female employee of Hooligans in Brooklyn Heights discovered a peephole in the changing room. Defendant does not have sufficient information and belief as to the truth or falsity ofthese allegations, and on that basis denies such allegations. 11. The female employee complained and informed Company management about the peephole. Defendant denies these allegations. 12. Defendant did nothing to timely repair the peepholes. Defendant denies these allegations. 13. On or about May 2, 2002, Plaintiffwas changing into her required uniform in the changing room when she heard people laughing. - 23 -
Defendant does not have sufficient infonnation to fonn a belief as to the truth or falsity of these allegations, and on that basis denies such allegations. 14. The more clothing Plaintifftook off, the more the laughing increased. Defendant does not have sufficient infonnation to fonn a belief as to the truth or falsity of these allegations, and on that basis denies such allegations. 15. Plaintiff sensed that she was being watched as she disrobed, but was unable to detennine from whence the laughter was emanating, Defendant does not have sufficient infonnation to fonn a belief as to the truth or falsity of these allegations, and on that basis denies such allegations. 16. Eventually, Plaintiff noticed the peephole. As she approached the peephole and belli over to look through it, she heard someone scrambling to get up and saw that the peephole went from being dark to allowing light to pass through from the outside of the changing room. Plaintiff then heard more laughter and the sound of retreating footsteps. Defendant does not have sufficient infonnation to fonn a belief as to the truth or falsity of these allegations, and on that basis denies such allegations. - 24-
17. When Plaintiff had changed from her uniform and had gone to the kitchen to say goodbye to the other employees ofdefendant, she noticed that the male employees in the kitchen were leering at her and making unwelcome sexual comments to and about her as she left for the day. Defendant does not have sufficient information to form a belief as to the truth or falsity of these allegations, and on that basis denies such allegations. 18. The wall into which the peephole had been placed was the common wall between the break room area and the female changing area of Hooligans in Brooklyn Heights. Defendant admits only that in late June or July, 2002, a small hole was reported in the common wall between the break room area, used by many employees, and the changing room, but denies all remaining allegations. 19. Various unknown employees of Hooligans (all reasonably believed to be male employees of the company) made the peepholes and watched the Plaintiff and other female employees while they disrobed and got into or out of Defendant Hooligans' uniform. Defendant does not have sufficient information to form a belief as to the truth or falsity of these allegations, and on that basis denies such allegations. - 25 -
20. On or about May 4, 2002, a female employee of Hooligans noticed another employee gaping at her through a peephole in the wall of the changing room while she was changing into her uniform. Defendant does not have sufficient information to form a belief as to the truth or falsity of these allegations, and on that basis denies such allegations. 21. The female employee screamed out in protest of her discovery that she was being watched. Defendant does not have sufficient information to form a belief as to the truth or falsity of these allegations, and on that basis denies such allegations. 22. The female employee again immediately complained and informed the managers at Hooligans in Brooklyn Heights about the peephole. Defendant admits only that on or about late June or July 2002, Mary O'Neil, General Manager, was informed by an as-yet unidentified female employee that a small hole existed in the wall of the changing room, but deny all remaining allegations. 23. The female employee advised other female employees of Hooligans in Brooklyn Heights about the peephole. - 26-
Defendant does not have sufficient information to form a belief as to the truth or falsity of these allegations, and on that basis denies such allegations. 24. Plaintiff was violated and humiliated as other employees watching her undress while she changed into and out ofdefendant Hooligans' uniform. Defendant does not have sufficient information to form a belief as to the truth or falsity ofthe allegations, and on that basis denies such allegations. 25. Plaintiff and other female employees complained to management of Hooligans in Brooklyn Heights and demanded that the walls of the changing room be repaired and the peepholes be destroyed. Defendant denies that either plaintiff or any other female employee informed Defendant about the one or two small holes that were discovered in or about late spring and/or early summer, 2002 at any other time than noted above, and denies that the plaintiff and other female employees demanded that the walls of the changing room be repaired and the holes be destroyed. 26. Despite the protestations of Plaintiff and other female employees to Defendant Hooligans upon their discovery that they were being watched through the peephole in the changing room wall, the peepholes remained unrepaired and uncovered. Defendant denies these allegations and m further answering, states that the small hole discovered in or about late June or July, 2002, was repaired in July, 2002. - 27 -
27. Finally, in an attempt to protect their privacy and modesty, Plaintiff and other female employees of Hooligans in Brooklyn Heights were forced to change into their uniforms in the public women's restroom at the restaurant. Defendant does not have sufficient information to form a belief as to the truth or falsity of these allegations and, on that basis denies such allegations. In further answering, defendant, on information and belief, states that on various occasions, both before and after the small hole was discovered on or about late spring and/or early summer, 2002 and repaired in July, 2002, plaintiff and other female employees of Hooligans elected to change into their uniforms in the public women's restroom. 28. Female customers of Hooligans in Brooklyn Heights who entered the public women's restroom while Plaintiff and other female employees were in a state of disrobe while changing into or out of their Hooligans uniform gave such disapproving looks causing Plaintiff additional humiliation and embarrassment. Defendant denies these allegations. 29. In or about August, 2002, Plaintiff again spoke to the management at Hooligans in Brooklyn Heights about covering up the peepholes in the changing room wall. Defendant denies these allegations. 30. The General Manager of Hooligans in Brooklyn Heights told Plaintiff to "leave a note" for the maintenance technician to make the repairs. - 28 -
Defendant denies these allegations. 31. Four days later the maintenance technician covered the peepholes, commenting to Plaintiff that this was not the first time he had covered such peepholes in the walls ofthe female changing area. Defendant does not have sufficient information to form a belief as to the truth or falsity of these allegations, and on that basis denies such allegations. 32. In February 2003, Plaintiff noticed new peepholes in the changing room wall as she was undressing. Defendant admits only that in or about February, 2003, one of its employees, other than Plaintiff, observed one small hole in the changing room wall, but is without sufficient information to form a belief as to the truth or falsity of the remaining allegations. 33. Plaintiff immediately complained to the General Manager at Hooligans in Brooklyn Heights about the peepholes. Defendant does not have sufficient information to fonn a belief as to the truth or falsity of these allegations, and on that basis denies such allegations. 34. Plaintiff demanded that something be done about the repeated recurrence ofthe peepholes in the female changing room walls. - 29 -
Defendant denies these allegations. a month later. 35. Despite Plaintiffs protests, these new peepholes were not covered up until Defendant admits only that the small hole discovered on or about February, 2003, as well as the entire changing room wall, was permanently I, I i repaired on or about March 6, 2003, at which time paneling was installed, after which no hole appeared, and denies all remaining allegations. 36. After the peepholes were discovered, Plaintiff and other female servers were regularly and repeatedly subjected to degrading sexual comments and inappropriate touching by and from male employees ofdefendant. Defendant denies these allegations. 37. Despite repeated complaints from the female servers, Defendant Hooligans' management failed to properly investigate the incidents, to prevent further peepholes from reappearing and/or to discipline the male employees responsible for the sexually inappropriate activities. Defendant denies these allegations. 38. Management employees also subjected Plaintiff to harassing comments and conducted on a continuous basis. - 30 -
Defendant makes no answer to these allegations for the reason that Defendant has filed a Motion to Strike these allegations. 1 comments. 39. Plaintiff requested that the Union file a grievance over these harassing Defendant does not have sufficient information to form a belief as to the truth or falsity of these allegations, and on that basis denies such allegations. 40. The Union refused to file a grievance. Defendant does not have sufficient information to form a belief as to the truth or falsity of these allegations, and on that basis denies such allegations. 41. On March 8, 2003, Plaintiff filed a charge of discrimination based on sexual harassment and breach of the duty of fair representation with the Equal Employment Opportunity Commission. (The Charge of Discrimination is attached hereto and made a part hereto as Exhibit "A"). Defendant admits these allegations. 1 The motion to strike was denied by the Court based on the view that the discrimination charge alleged harassment, and harassment by supervisors was viewed as "like or related" to the underlying claim. - 31 -
42. Right-to-Sue letters were issued by the Equal Employment Opportunity Commission to Plaintiff on June 18, 2003. (The Right-to-Sue letters are attached hereto and made a part hereofas Exhibit "B"). Defendant admits these allegations. COUNT I: SEXUAL HARASSMENT IN VIOLATION OF TITLE VII (AGAINST DEFENDANT HOOLIGANS) 43. The Plaintiff repeats and realleges Paragraphs 1-42 of this Complaint as Paragraphs 1 through 42 ofcount I as though fully set forth herein. Defendant repeats and incorporates its answers to Paragraphs 1 through 42 ofthis Complaint as its answer to Paragraph 43, as though fully set forth herein. 44. Defendant Hooligans has discriminated against and harassed Plaintiff on the basis ofher sex in violation oftitle VII. Defendant denies these allegations. 45. The sexual harassment affected a term, condition or privilege of employment by giving preferential treatment to employees who succumbed to the manager's requests to see them socially and by creating an abusive work environment that has affected the Plaintiffs psychological and physical well-being. Defendant denies these allegations. 46. Because of the sexual harassment, the Plaintiff has been subjected to psychological injury so severe, that no reasonable person would be able to endure it. - 32 -
Defendant denies these allegations. 47. The Plaintiff is now suffering and will continue to suffer irreparable injury and monetary damages as a result of the Defendant Hooligans' sexual harassment unless and until the Court grants relief. Defendant denies these allegations and in further answering denies that the plaintiffwas damaged or injured to the extent alleged. COUNT II: SEXUAL HARASSMENT IN VIOLATION OF NEW YORK EXECUTIVE LAW 296 (AGAINST DEFENDANT HOOLIGANS) 48. The Plaintiff repeats and realleges Paragraphs 1-47 of this Complaint as Paragraphs 1 through 47 ofcount II as though fully set forth herein. Defendant repeats and incorporates its answers to Paragraphs 1 through 47 of this Complaint as its answer to Paragraph 48, as though fully set forth herein. 49. Defendant Hooligans has discriminated against and harassed Plaintiff on the basis ofher sex in violation ofn.y. Exec. Law 296. Defendant denies these allegations. 50. The sexual harassment affected a term, condition or privilege of employment by giving preferential treatment to employees who succumbed to the manager's requests to see them socially and by creating an abusive work environment that has affected the Plaintiffs psychological and physical well-being. Defendant denies these allegations. - 33 -
51. Because of the sexual harassment, the Plaintiff has been subjected to psychological injury so severe, that no reasonable person would be able to endure it. Defendant denies these allegations. 52. The Plaintiff is now suffering and will continue to suffer irreparable injury and monetary damages as a result ofthe Defendant Hooligans' sexual harassment unless and until the Court grants relief. Defendant denies these allegations and in further answering denies that the plaintiffwas damaged or injured to the extent alleged. COUNT III: SEXUAL HARASSMENT IN VIOLATION OF NEW YORK CITY ADMIN. CODE 8-107 (AGAINST DEFENDANT HOOLIGANS) 53. The Plaintiffrepeats and realleges Paragraphs 1-52 ofthis Complaint as Paragraphs 1 through 52 ofcount III as though fully set forth herein. Defendant repeats and incorporates its answers to Paragraphs 1 through 52 ofthis Complaint as its answer to Paragraph 53, as though fully set forth herein. 54. Defendant Hooligans has discriminated against and harassed Plaintiff on the basis ofher sex in violation ofn.y. Admin. Code 8-107. Defendant denies these allegations. 55. The sexual harassment affected a term, condition or privilege of employment by giving preferential treatment to employees who succumbed to the manager's requests to see them socially and by creating an abusive work environment that has affected the Plaintiffs psychological and physical well-being. Defendant denies these allegations. - 34 -
56. Because of the sexual harassment, the Plaintiff has been subjected to psychological injury so severe, that no reasonable person would be able to endure it. Defendant denies these allegations. 57. Defendant Hooligans' sexual harassment of the Plaintiff was not only intentional, and done with malice and reckless indifference to Plaintiffs protected rights, but was also done with knowledge of the perceived risk that its actions were prohibited by law. Defendant denies these allegations. 58. The Plaintiff is now suffering and will continue to suffer irreparable injury and monetary damages as a result ofthe Defendant Hooligans' sexual harassment unless and until the Court grants relief. Defendant denies these allegations and in further answering denies that the plaintiff was damaged or injured to the extent alleged. COUNT IV: BREACH OF THE FAIR REPRESENTATION DUTY IN VIOLATION OF TITLE VII (AGAINST DEFENDANT UNION) 59. The Plaintiff repeats and realleges Paragraphs 1-58 of this Complaint as Paragraphs 1 through 58 ofcount IV as though fully set forth herein. As paragraphs 59-62 involve no claim against Defendant Hooligans, Defendant Hooligans offers no response. To the extent a response may be deemed necessary, Defendant Hooligans denies all allegations not specifically admitted. 60. Plaintiff requested but the Union refused to file a grievance under the collective bargaining agreement. - 35 -
As paragraphs 59-62 involve no claim against Defendant Hooligans, Defendant Hooligans offers no response. To the extent a response may be deemed necessary, Defendant Hooligans denies all allegations not specifically admitted. 61. Defendant Union's refusal to pursue a gnevance over the harassing conduct violated Title VII. As paragraphs 59-62 involve no claim against Defendant Hooligans, Defendant Hooligans offers no response. To the extent a response may be deemed necessary, Defendant Hooligans denies all allegations not specifically admitted. 62. The Plaintiff is now suffering and will continue to suffer irreparable injury and monetary damages as a result of the Defendant Union's refusal to represent her unless and until the Court grants relief. As paragraphs 59-62 involve no claim against Defendant Hooligans, Defendant Hooligans offers no response. To the extent a response may be deemed necessary, Defendant Hooligans denies all allegations not specifically admitted. COUNT V: BREACH OF THE FAIR REPRESENTATION DUTY IN VIOLATION OF N.Y. EXEC. LAW 296 (AGAINST DEFENDANT UNION) 63. The Plaintiff repeats and realleges Paragraphs 1-63 of this Complaint as Paragraphs 1 through 63 of Count V as though fully set forth herein. As paragraphs 63-66 involve no claim against Defendant Hooligans, Defendant Hooligans offers no response. To the extent a response may be deemed necessary, Defendant Hooligans denies all allegations not specifically admitted. - 36 -
64. Plaintiff requested but the Union refused to file a grievance under the collective bargaining agreement. As paragraphs 63-66 involve no claim against Defendant Hooligans, Defendant Hooligans offers no response. To the extent a response may be deemed necessary, Defendant Hooligans denies all allegations not specifically admitted. 65. Defendant Union's refusal to pursue a grievance over the harassing conduct violated N.Y. Exec. Law 296. As paragraphs 63-66 involve no claim against Defendant Hooligans, Defendant Hooligans offers no response. To the extent a response may be deemed necessary, Defendant Hooligans denies all allegations not specifically admitted. 66. The Plaintiffis now suffering and will continue to suffer irreparable injury and monetary damages as a result of the Defendant Union's refusal to represent her unless and until the Court grants relief. As paragraphs 63-66 involve no claim against Defendant Hooligans, Defendant Hooligans offers no response. To the extent a response may be deemed necessary, Defendant Hooligans denies all allegations not specifically admitted. COUNT VI: BREACH OF THE FAIR REPRESENTATION DUTY IN VIOLATION OFN.Y.C. ADMIN. CODE 8-107 (AGAINST DEFENDANT UNION) 67. The Plaintiff repeats and realleges Paragraphs 1-66 of this Complaint as Paragraphs 1 through 66 ofcount VI as though fully set forth herein. As paragraphs 67-71 involve no claim against Defendant Hooligans, Defendant Hooligans offers no response. To the extent a response may be deemed necessary, Defendant Hooligans denies all allegations not specifically admitted. - 37 -
68. Plaintiff requested but the Union refused to file a grievance under the collective bargaining agreement. As paragraphs 67-71 involve no claim against Defendant Hooligans, Defendant Hooligans offers no response. To the extent a response may be deemed necessary, Defendant Hooligans denies all allegations not specifically admitted. 69. Defendant Union's refusal to pursue a grievance over the harassing conduct violated N.Y.C. Admin. Code 8-107. As paragraphs 67-71 involve no claim against Defendant Hooligans, Defendant Hooligans offers no response. To the extent a response may be deemed necessary, Defendant Hooligans denies all allegations not specifically admitted. 70. Defendant Union's refusal to pursue a grievance was not only intentional, and done with malice and reckless indifference to Plaintiffs protected rights, but was also done with knowledge ofthe perceived risk that its actions were prohibited by law. As paragraphs 67-71 involve no claim against Defendant Hooligans, Defendant Hooligans offers no response. To the extent a response may be deemed necessary, Defendant Hooligans denies all allegations not specifically admitted. 71. The Plaintiff is now suffering and will continue to suffer irreparable injury and monetary damages as a result of the Defendant Union's refusal to represent her unless and until the Court grants relief. As paragraphs 67-71 involve no claim against Defendant Hooligans, Defendant Hooligans offers no response. To the extent a response may be deemed necessary, Defendant Hooligans denies all allegations not specifically admitted. - 38 -
AFFIRMATIVE DEFENSES 72. Plaintiff did not take advantage of any preventive or corrective opportunities provided by the Defendant or to otherwise avoid her alleged harm, injuries or damages. 73. Plaintiffhas failed to diligently mitigate her alleged damages and injuries. 74. Defendant took prompt and appropriate remedial and corrective action after being informed ofthe presence of any hole. 75. Assuming that the hole or holes were created by an employee of Defendant, Defendant did not authorize or acquiesce in such action, was not responsible for those actions, and cannot be held accountable for them. 76. Punitive damages are unwarranted because Defendant did not engage in intentional discrimination or act with malice or with reckless indifference to plaintiffs legally protected rights. WHEREFORE, the Defendant, Hooligans, Inc., denies that the Plaintiff is entitled to any relief, including but not limited to the recovery of compensatory or any other damages, denies that the Plaintiff is entitled to recover any legal fees or costs from these Defendant, and prays that judgment be entered in favor of the Defendant and against the Plaintiff, and for all other relief as this Court deems proper. Respectfully submitted, HOOLIGANS, INC. - 39-
O'Brien & O'Brien One Park Avenue New York, NY By: ~==:-:~--;-:------ One ofits Attorneys - 40-
DEFENDANT UNION'S ANSWER TO COMPLAINT - 41 -
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW YORK EASTERN DISTRICT CINDY WILD v. Plaintiff, HOOLIGANS, INC. and WORKERS UNION OF AMERICA Defendants. ) ) ) ) ) ) ) ) ) CASE NO. 04 C 1175 JURY DEMAND ANSWER TO COMPLAINT NOW COMES the Defendant WORKERS UNION OF AMERICA., by and through its attorneys, and in answer to the Complaint filed by the Plaintiff, states as follows: JURISDICTION 1. The jurisdiction of this Honorable Court is invoked pursuant to Title VII, 42 USC. 2000 et seq. Defendant Union admits only that plaintiff seeks to invoke the jurisdiction of this Court pursuant to Title VII, 42 U.S.c. 2000 et seq., but denies any allegation that it violated Title VII. 2. CINDY WILD (sometimes hereinafter referred to as "Plaintiff'), a female, at all times relevant to this Complaint was an employee ofdefendant, Hooligans, a resident ofthe State ofillinois, and a citizen ofthe United States ofamerica. Defendant Union admits these allegations upon information and belief. - 42 -
3. HOOLIGANS INC. (sometimes hereinafter referred to as "Defendant Hooligans") at all times relevant to this Complaint was a corporation licensed, to do business in the State ofnew York. Defendant Union admits these allegations. 4. WORKERS UNION OF AMERICA (sometimes hereinafter referred to as "Defendant Union") at all times was the exclusive bargaining representative for the kitchen staff and servers employed by Defendant Hooligans. Defendant Union admits these allegations. 5. At all relevant times, Defendants Hooligans and the Union were parties to a collective bargaining agreement that included a grievance and arbitration procedure and a provision that prohibited discrimination in violation of the law. Defendant Union admits these allegations. FACTS 6. Defendant Hooligans required all ofits female servers to wear a uniform consisting of short, tight-fitting shorts, pantyhose, and a tight-fitting t-shirt. Defendant Union admits that the servers were required to wear uniforms selected by Defendant Hooligans but otherwise denies the allegations set forth in paragraph 6. The female servers are designated by Defendant and nationally advertised as "Hooligans Girls." - 43 -
7. The female servers are designated by Defendant and nationally advertised as "Hooligans Girls." Defendant Union admits that Defendant Hooligans has designated the female servers ofhooligans as "Hooligans Girls" and that they nationally advertise the same. 8. The policy of Defendant Hooligans dictates that the female servers change into their required uniforms on site, in a changing room provided by the company. Defendant Union admits that Defendant Hooligans provides a changing room for the female servers of Hooligans in Brooklyn Heights electing to use it to change into their uniforms on site, but otherwise denies the allegations in paragraph 8. 9. A changing room was provided for the Hooligans Girls to change into their tight fitting uniforms before commencing work and to change out of the uniforms at the completion oftheir respective tour ofduty. Defendant Union admits there was a changing room provided by Defendant Hooligans and otherwise neither admits nor denies these allegations as it does not have sufficient information and belief as to the truth or falsity of these allegations and on that basis denies the allegations. 10. In or early May, 2002, a female employee of Hooligans in Brooklyn Heights discovered a peephole in the Hooligan Girls [sic] changing room. Defendant Union does not have sufficient information and belief as to the truth or falsity ofthese allegations, and on that basis denies such allegations. - 44-
11. The female employee complained and informed Company management about the peephole in early May, 2002. Defendant Union does not have sufficient infonnation and belief as to the truth or falsity ofthese allegations, and on that basis denies such allegations. 12. Defendant did nothing to timely repair the peepholes. Defendant Union does not have sufficient infonnation and belief as to the truth or falsity ofthese allegations, and on that basis denies such allegations. 13. On or about May 1, 2002, Plaintiff was changing into her required uniform in the changing room when she heard people laughing. Defendant Union does not have sufficient information to fonn a belief as to the truth or falsity ofthese allegations, and on that basis denies such allegations. 14. The more clothing Plaintifftook off, the more the laughing increased. Defendant Union does not have sufficient information to fonn a beliefas to the truth or falsity ofthese allegations, and on that basis denies such allegations. 15. Plaintiff sensed that she was being watched as she disrobed, but was unable to determine from whence the laughter was emanating, Defendant Union does not have sufficient information to fonn a beliefas to the truth or falsity ofthese allegations, and on that basis denies such allegations. - 45 -
16. Eventually, Plaintiff noticed the peephole. As she approached the peephole and bent over to look through it, she heard someone scrambling to get up and saw that the peephole went from being dark to allowing light to pass through from the outside of the changing room. Plaintiff then heard more laughter and the sound of retreating footsteps. Defendant Union does not have sufficient information to form a belief as to the truth or falsity ofthese allegations, and on that basis denies such allegations. 17. When Plaintiff had changed from her uniform and had gone to the kitchen to say goodbye to the other employees ofdefendant, she noticed that the male employees in the kitchen were leering at her and making unwelcome sexual comments to and about her as she left for the day. Defendant Union does not have sufficient information to form a belief as to the truth or falsity ofthese allegations, and on that basis denies such allegations. 18. The wall into which the peephole had been placed was the common wall between the break room area and the female changing area of Hooligans in Brooklyn Heights. Defendant Union does not have sufficient information and belief as to the truth or falsity ofthese allegations, and on that basis denies such allegations. 19. Various unknown employees of Hooligans (all reasonably believed to be male employees of the company) made the peepholes and watched the Plaintiff and other female employees while they disrobed and got into or out ofdefendant's uniform. - 46-
Defendant Union does not have sufficient infonnation to fonn a beliefas to the truth or falsity ofthese allegations, and on that basis denies such allegations. 20. On or about May 4, 2002, a female employee of Hooligans noticed another employee gaping at her through a peephole in the wall of the changing room while she was changing into her unifonn. Defendant Union does not have sufficient infonnation to fonn a beliefas to the truth or falsity ofthese allegations, and on that basis denies such allegations. 21. The female employee screamed out in protest of her discovery that she was being watched. Defendant Union does not have sufficient infonnation to fonn a belief as to the truth or falsity ofthese allegations, and on that basis denies such allegations. 22. The female employee again immediately complained and infonned the managers at Hooligans in Brooklyn Heights about the peephole. Defendant Union does not have sufficient infonnation and belief as to the truth or falsity ofthese allegations, and on that basis denies such allegations. 23. The female employee advised other female employees of Hooligans in Brooklyn Heights about the peephole. Defendant Union does not have sufficient infonnation to fonn a beliefas to the truth or falsity ofthese allegations, and on that basis denies such allegations. - 47 -
24. Plaintiff was violated and humiliated as other employees watching her undress while she changed into and out of Defendant Hooligans' uniform. Defendant Union does not have sufficient information to form a belief as to the truth or falsity ofthe allegations, and on that basis denies such allegations. 25. Plaintiff and other female employees complained to management of Hooligans in Brooklyn Heights and demanded that the walls of the changing room be repaired and the peepholes be destroyed. Defendant Union does not have sufficient information and belief as to the truth or falsity ofthese allegations, and on that basis denies such allegations. 26. Despite the protestations of Plaintiff and other female employees to Defendant Hooligans upon their discovery that they were being watched through the peephole in the changing room wall, the peepholes remained unrepaired and uncovered. Defendant Union does not have sufficient information and beliefas to the truth or falsity ofthese allegations, and on that basis denies such allegations. 27. Finally, in an attempt to protect their privacy and modesty, Plaintiff and other female employees of Hooligans in Brooklyn Heights were forced to change into their uniforms in the public women's restroom at the restaurant. Defendant Union does not have sufficient information to form a belief as to the truth or falsity ofthese allegations and, on that basis denies such allegations. - 48-
28. Female customers ofhooligans in Brooklyn Heights who entered the public women's restroom while Plaintiff and other female employees were in a state of disrobe while changing into or out oftheir Hooligans uniform gave such disapproving looks causing Plaintiff additional humiliation and embarrassment. Defendant Union does not have sufficient information and belief as to the truth or falsity ofthese allegations, and on that basis denies such allegations. 29. In or about August, 2002, Plaintiff again spoke to the management at Hooligans in Brooklyn Heights about covering up the peepholes in the changing room wall. Defendant Union does not have sufficient information and belief as to the truth or falsity ofthese allegations, and on that basis denies such allegations. 30. The General Manager of Hooligans in Brooklyn Heights told Plaintiff to "leave a note" for the maintenance technician to make the repairs. Defendant Union does not have sufficient information and belief as to the truth or falsity ofthese allegations, and on that basis denies such allegations. 31. Four days later the maintenance technician covered the peepholes, commenting to Plaintiff that this was not the first time he had covered such peepholes in the walls of the female changing area. Defendant Union does not have sufficient information to form a belief as to the truth or falsity ofthese allegations, and on that basis denies such allegations. - 49-
32. In February 2003, Plaintiff noticed new peepholes in the changing room wall as she was undressing. Defendant Union does not have sufficient information and beliefas to the truth or falsity ofthese allegations, and on that basis denies such allegations. 33. Plaintiff immediately complained to the General Manager at Hooligans in Brooklyn Heights about the peepholes. Defendant Union does not have sufficient information to form a beliefas to the truth or falsity ofthese allegations, and on that basis denies such allegations. 34. Plaintiff demanded that something be done about the repeated recurrence of the peepholes in the female changing room walls. Defendant Union does not have sufficient information and belief as to the truth or falsity ofthese allegations, and on that basis denies such allegations. 35. Despite Plaintiffs protests, these new peepholes were not covered up until a month later. Defendant Union does not have sufficient information and belief as to the truth or falsity ofthese allegations, and on that basis denies such allegations. 36. After the peepholes were discovered, Plaintiff and other female servers were regularly and repeatedly subjected to degrading sexual comments and inappropriate touching by and from male employees ofdefendant. - 50 -
Defendant Union denies these allegations. 37. Despite repeated complaints from the female servers, Defendant Hooligans' management failed to properly investigate the incidents, to prevent further peepholes from reappearing and/or to discipline the male employees responsible for the sexually inappropriate activities. Defendant Union does not have sufficient information and beliefas to the truth or falsity ofthese allegations, and on that basis denies such allegations. 38. Plaintiffrequested that the Union file a grievance over these harassing comments. The Union admits that Plaintiff requested that the Union file a gnevance alleging that the conduct of fellow workers violated the collective bargaining agreement. 39. The Union refused to file a grievance. The Union admits that it did not file and pursue a gnevance because, based on its good faith beliet~ it could not allege a violation of the collective bargaining agreement. 40. Management employees also subjected Plaintiff to harassing comments and conducted on a continuous basis. - 51 -
Defendant Union makes no answer to these allegations for the reason that they have joined in Defendant Hooligans' Motion to Strike these allegations.~ 41. On March 8, 2003, Plaintiff filed a charge of discrimination based on sexual harassment with the Equal Employment Opportunity Commission. (The Charge of Discrimination is attached hereto and made a part hereto as Exhibit "A"). Defendant Union admits these allegations. 42. A Right-to-Sue letter was issued by the Equal Employment Opportunity Commission to Plaintiff on June 18, 2003. (The Right-to-Sue letter See is attached hereto and made a part hereof as Exhibit "B"). Defendant Union admits these allegations. COUNT I: SEXUAL HARASSMENT IN VIOLATION OF TITLE VII (AGAINST DEFENDANT HOOLIGANS) 43. The Plaintiffrepeats and realleges Paragraphs 1-42 of this Complaint as Paragraphs 1 through 42 ofcount I as though fully set forth herein. Defendant Union repeats and incorporates its answers to Paragraphs 1 through 42 of this Complaint as its answer to Paragraph 43, as though fully set forth herein. 44. The Defendant Hooligans has discriminated against and harassed Plaintiff on the basis ofher sex in violation oftitle VII. 2. The motion to strike was denied by the Court based on the view that the discrimination charge alleged harassment, and harassment by supervisors was viewed as "like or related" to the underlying claim. - 52 -
As these allegations are only against Defendant Hooligans, Defendant Union does not respond to the allegations in this paragraph. 45. The sexual harassment affected a term, condition or privilege of employment by giving preferential treatment to employees who succumbed to the manager's requests to see them socially and by creating an abusive work environment that has affected the Plaintiffs psychological and physical well-being. As these allegations are only against Defendant Hooligans, Defendant Union does not respond to the allegations in this paragraph. 46. Because of the sexual harassment, the Plaintiff has been subjected to psychological injury so severe, that no reasonable person would be able to endure it. As these allegations are only against Defendant Hooligans, Defendant Union does not respond to the allegations in this paragraph. 47. The Plaintiff is now suffering and will continue to suffer irreparable injury and monetary damages as a result of the Defendant Hooligans' sexual harassment unless and until the Court grants relief. As these allegations are only against Defendant Hooligans, Defendant Union does not respond to the allegations in this paragraph. COUNT II: SEXUAL HARASSMENT IN VIOLATION OF N.Y. EXEC. LAW 296 (AGAINST DEFENDANT HOOLIGANS) 48. The Plaintiff repeats and realleges Paragraphs 1-47 of this Complaint as Paragraphs through 47 ofcount II as though fully set forth herein. - 53 -
Defendant Union repeats and incorporates its answers to Paragraphs 1 through 47 ofthis Complaint as its answer to Paragraph 48, as though fully set forth herein. 49. Defendant Hooligans has discriminated against and harassed Plaintiff on the basis of her sex in violation ofn.y. Exec. Law 296. As these allegations are only against Defendant Hooligans, Defendant Union does not respond to the allegations in this paragraph. 50. The sexual harassment affected a term, condition or privilege of employment by giving preferential treatment to employees who succumbed to the manager's requests to see them socially and by creating an abusive work environment that has affected the Plaintiff's psychological and physical well-being. As these allegations are only against Defendant Hooligans, Defendant Union does not respond to the allegations in this paragraph. 51. Because ofthe sexual harassment, the Plaintiffhas been subjected to psychological injury so severe, that no reasonable person would be able to endure it. As these allegations are only against Defendant Hooligans, Defendant Union does not respond to the allegations in this paragraph. 52. The Plaintiffis now suffering and will continue to suffer irreparable injury and monetary L damages as a result ofthe Defendant Hooligans' sexual harassment unless and until the Court grants relief. As these allegations are only against Defendant Hooligans, Defendant Union does not respond to the allegations in this paragraph. - 54 -
COUNT III: SEXUAL HARASSMENT IN VIOLATION OF NEW YORK CITY ADMIN. CODE 8-107 (AGAINST DEFENDANT HOOLIGANS) 53. The Plaintiffrepeats and realleges Paragraphs 1-52 ofthis Complaint as Paragraphs 1 through 52 ofcount I as though fully set forth herein. Defendant Union repeats and incorporates its answers to Paragraphs 1 through 52 ofthis Complaint as its answer to Paragraph 53, as though fully set forth herein. I L 54. Defendant Hooligans has discriminated against and harassed Plaintiff on the basis of her sex in violation ofn.y. Admin. Code 8-107. As these allegations are only against Defendant Hooligans, Defendant Union does not respond to the allegations in this paragraph. 55. The sexual harassment affected a term, condition or privilege of employment by giving preferential treatment to employees who succumbed to the manager's requests to see them socially and by creating an abusive work environment that has affected the Plaintiffs psychological and physical well-being. As these allegations are only against Defendant Hooligans, Defendant Union does not respond to the allegations in this paragraph. 56. Because ofthe sexual harassment, the Plaintiffhas been subjected to psychological injury i.. ~.- so severe, that no reasonable person would be able to endure it. As these allegations are only against Defendant Hooligans, Defendant Union does not respond to the allegations in this paragraph. 57. Defendant Hooligans' sexual harassment of the Plaintiff was not only intentional, and done with malice and reckless indifference to Plaintiffs protected rights, but was also done with knowledge ofthe perceived risk that its actions were prohibited by law. - 55 -
As these allegations are only against Defendant Hooligans, Defendant Union does not respond to the allegations in this paragraph. 58. The Plaintiffis now suffering and will continue to suffer irreparable injury and monetary damages as a result ofthe Defendant Hooligans' sexual harassment unless and until the Court grants relief. As these allegations are only against Defendant Hooligans, Defendant Union does not respond to the allegations in this paragraph. COUNT IV: BREACH OF THE FAIR REPRESENTATION DUTY IN VIOLATION OF TITLE VII (AGAINST DEFENDANT UNION) 59. The Plaintiff repeats and realleges Paragraphs 1-58 of this Complaint as Paragraphs through 58 ofcount IV as though fully set forth herein. Defendant Union repeats and realleges its answers to paragraph 1-59 of the Complaint as though fully set forth herein. 60. Plaintiff requested but the Union refused to file a gnevance under the collective bargaining agreement. Defendant Union admits that Plaintiffrequested but for non-arbitrary, nondiscriminatory and good faith reasons, Defendant Union decided not to pursue the grievance. 61. Defendant Union's refusal to pursue a grievance over the harassing conduct violated Title VII. Defendant Union denies this allegation. 62. The Plaintiff is now suffering and will continue to suffer irreparable injury and monetary damages as a result of the Defendant Union's refusal to represent her unless and until the Court grants relief. - 56 -
Defendant Union denies these allegations. COUNT V: BREACH OF THE FAIR REPRESENTATION DUTY IN VIOLATION OF N.Y. EXEC. LAW 296 (AGAINST DEFENDANT UNION) 63. The Plaintiff repeats and realleges Paragraphs 1-62 of this Complaint as Paragraphs 1 through 62 ofcount V as though fully set forth herein. Defendant Union repeats and realleges its answers to paragraphs 1-62 of the Complaint as though fully set forth herein. 64. Plaintiff requested but the Union refused to file a gnevance under the collective bargaining agreement. Defendant Union admits that Plaintiffrequested but for non-arbitrary, nondiscriminatory and good faith reasons, Defendant Union decided not to pursue the grievance. 65. Defendant Union's refusal to pursue a grievance over the harassing conduct violated N.Y. Exec. Law 296. Defendant Union denies this allegation. 66. The Plaintiff is now suffering and will continue to suffer irreparable injury and monetary damages as a result of the Defendant Union's refusal to represent her unless and until the Court grants relief. Defendant Union denies these allegations. COUNT VI: BREACH OF THE FAIR REPRESENTATION DUTY IN VIOLATION OF N.Y.C. ADMIN. CODE 8-107 (AGAINST DEFENDANT UNION) 67. The Plaintiff repeats and realleges Paragraphs 1-66 of this Complaint as Paragraphs 1 through 66 of Count VI as though fully set forth herein. - 57 -
Defendant Union repeats and realleges its answers to paragraphs 1-66 of the Complaint as though fully set forth herein. 68. Plaintiff requested but the Union refused to file a grievance under the collective bargaining agreement. Defendant Union admits that Plaintiffrequested but for non-arbitrary, nondiscriminatory and good faith reasons, Defendant Union decided not to pursue the grievance. 69. Defendant Union's refusal to pursue a grievance over the harassing conduct violated NY.C. Admin. Code 8-107. Defendant Union denies this allegation. 70. Defendant Union's refusal to pursue a grievance was not only intentional, and done with malice and reckless indifference to Plaintiffs protected rights, but was also done with knowledge ofthe perceived risk that its actions were prohibited by law. Defendant Union denies this allegation. 71. The Plaintiff is now suffering and will continue to suffer irreparable injury and monetary damages as a result of the Defendant Union's refusal to represent her unless and until the Court grants relief. Defendant Union denies this allegation. - 58 -
AFFIRMATIVE DEFENSES 1. Plaintifffailed to state a claim for which relief can be granted. 2. Defendant Union's decision not to pursue a grievance was not arbitrary, discriminatory or in bad faith. 3. Plaintiffhas failed to diligently mitigate her alleged damages and injuries. 4. Punitive damages are unwarranted because Defendant did not engage in intentional discrimination or act with malice or with reckless indifference to plaintiffs legally protected rights. WHEREFORE, the Defendant, Workers Union of America denies that the Plaintiffis entitled to any relief, including but not limited to the recovery ofcompensatory or any other damages, denies that the Plaintiffis entitled to recover any legal fees or costs from this Defendant, and prays that judgment be entered in favor ofthe Defendant and against the Plaintiff, and for all other relief as this Court deems proper. Respectfully submitted, WORKERS UNION OF AMERICA Smart and Able LLC One Broadway New York, NY By: One ofits Attorneys _ - 59 -