Wheat v. Vichie (2025)

Case details
Country
United States
Jurisdiction
New York (NY)
Court
New York Court of Appeals
Decided
2025
Disposition
Motion Granted
Panel
Hon; Frank (Justice)
Wheat v. Vichie, 2025 WL 3089438 (2025) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.12025 WL 3089438 (N.Y.Sup.), 2025 N.Y. Slip Op. 34208(U) (Trial Order)Supreme Court of New York.New York CountyWHEAT, Thomas, Plaintiff,v.VICHIE, Trent, Defendant.No. 158627/2024.November 3, 2025.*1 Part 11MMotion Date 08/22/2025Motion Seq. No. 003Editor's Note: This document contains discussion of unverified citations, likely generatedby AI tools used by a party or counsel. These citations are not attributable to the Court. Theunverified citations have been preserved as part of the official record, but links are unavailable.Decision + Order on MotionPresent: Hon. Lyle E. Frank, Justice.The following e-filed documents, listed by NYSCEF document number (Motion 003) 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71,72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82 were read on this motion to/for DISMISS.Upon the foregoing documents, the motion is granted in part.BackgroundAccording to Plaintiff's allegations, he was employed in Defendant's Manhattan residence as a domestic household workerbeginning in August of 2022, as well as in a Chief of Staff role for Defendant's company. Plaintiff alleges that he was “directedand pressured” by Defendant's wife to produce prescription-only controlled substances for Defendant's consumption and thathe complied due to fear of termination. He continued to obtain controlled substances for Defendant for most of his employment.Plaintiff alleges that when he eventually decided to no longer procure prescription drugs for Defendant and his wife, Defendantresponded by “openly displaying” Nazi-themed materials in the house and by making “demeaning remarks.” Defendant arguesthat the material is academic, related to his wife's degree in Holocaust studies, and that some of the alleged Nazi material is noteven related to the Nazis but rather material originating from late twentieth-century Germany.In March of 2024, Plaintiff was terminated from his role in the company Globalization Partners U.S., Inc., and in conjunctionwith that termination Plaintiff signed a release (the “Release”). Then in June of 2024, Defendant terminated Plaintiff'semployment as a domestic household worker. Plaintiff filed a summons with notice in September of 2024. The original complaintwas filed in August of 2025, and Defendant responded with a motion to dismiss. This motion was mooted by the filing of anamended complaint shortly thereafter, which Plaintiff filed now proceeding pro se. The present pre-answer motion to dismissis brought against the amended complaint.
Wheat v. Vichie, 2025 WL 3089438 (2025) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.2Standard of ReviewIt is well settled that when considering a motion to dismiss pursuant to CPLR § 3211, “the pleading is to be liberally construed,accepting all the facts alleged in the pleading to be true and according the plaintiff the benefit of every possible inference.”Avgush v. Town of Yorktown, 303 A.D.2d 340, 341 [2d Dept. 2003]. Dismissal of the complaint is warranted “if the plaintifffails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them donot allow for an enforceable right of recovery.” Connaughton v. Chipotle Mexican Grill, Inc, 29 N.Y.3d 137, 142 [2017].CPLR § 3211(a)(5) allows for a complaint to be dismissed because of a valid release. While a valid release generally “constitutesa complete bar”, for a signed release the burden shifts to the plaintiff to “show that there has been fraud, duress, or some otherfact which will be sufficient to void the release.” Centro Empesarial Cempresa S.A. v. América Móvil, S.A.B. de C.V., 17 N.Y.3d269, 276 [2011].*2 A party may move for a judgment from the court dismissing causes of action asserted against them based on the fact thatthe pleading fails to state a cause of action. CPLR § 3211(a)(7). For motions to dismiss under this provision, “[i]nitially, the solecriterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned whichtaken together manifest any cause of action cognizable at law.” Guggenheimer v. Ginzburg, 43 N.Y. 2d 268, 275 [1977].DiscussionAs an initial matter, the Court notes that the pro se Plaintiff's papers at several times misstate the holdings of cases cited toand include two citations to what appears to be entirely fictional cases -- Sosnovska v. Belle World Beauty, Inc., which casename is cited as both a First Department and a Second Department case. Whether the result of reliance on AI or otherwise,the Court cautions Plaintiff to refrain from making false representations to a court. Further citations to non-existent cases ormisrepresentations of case holdings will result in sanctions.Defendant moves to dismiss the amended complaint both on the grounds that the causes of action fail to state a claim, and that theclaims are barred by the Release. The amended complaint pleads claims for discrimination and hostile work environment underboth the New York State and the New York City Human Rights Law (NYSHRL and NYCHRL), retaliation under NYCHRL,unpaid overtime, failure to provide wage notice, untimely wage payments, and whistleblower retaliation, under the New YorkLabor Law, and Intentional Infliction of Emotional Distress. Plaintiff opposes the motion. For the reasons that follow, the motionto dismiss is granted as to all claims except for unpaid overtime and failure to provide wage notice.Defendant's Wife Was Not His AgentAs an initial matter, the majority of the factual allegations in the complaint relate to actions taken by or to Defendant's wife,a non-party. Plaintiff makes a few conclusory statements that Defendant's wife must have been acting on Defendant's behalfbut provides nothing more than mere conclusory statements to that effect. Similarly, the lengthy statements Plaintiff makes thathe was able to divine from the wife's “body language” that she had been coerced into saying and doing certain things by theDefendant are, quite frankly, irrelevant to the claims asserted, conclusory, and incredulous (even on the favorable standard of amotion to dismiss). Defendant's wife is not a party to this action by Plaintiff's choice, and Plaintiff has provided nothing morethan her status as Defendant's spouse in support of his argument that she was Defendant's agent. This is insufficient to imposeliability on Defendant for her actions. See, e.g., Russell v. New York Univ., 42 N.Y.3d 377, 401 [2024] (holding that “in orderto hold an individual defendant liable for creating a hostile work environment under NYCHRL, evidence must show that theclaim relates directly to the conduct and behavior of the individual”). When analyzing whether Plaintiff has stated a claim, theCourt will consider the actions that can be directly imputed to Defendant.
Wheat v. Vichie, 2025 WL 3089438 (2025) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.3The Release Does Not Bar Plaintiff's ClaimsDefendant argues that the Release serves to bar Plaintiff's claims here because in the Release, Plaintiff agreed to waive allclaims against any of Everwind Fuels Company's officers. Defendant is the CEO of Everwind Fuels and argues that the Releaseencompasses the present claims asserted against him. Plaintiff argues that the release was only for claims asserted againstDefendant in his capacity as an officer of Everwind, and not in his personal capacity. While Defendant argues that the Releasedid not necessarily arise only from the context of Plaintiff's employment with Globalization Partners, this is not enough to meettheir burden. On a motion to dismiss, the non-movant is afforded every favorable inference. The plain language of the Releaserefers to claims asserted against “EverWind Fuels Company and any of their past or present officers.” Plaintiff's claims assertedhere are in relation to his employment as a domestic worker in Mr. Vichie's residence and are not asserted against Defendant inrelation to his role as an officer for EverWind. The language of the Release does not refer to all claims asserted against “TrentVichie”, but all claims asserted against EverWind's officers. Because Defendant has not established at this point that the releaseencompasses all claims that the Plaintiff has against individuals who happen to be officers in a company covered under theRelease, the amended complaint cannot be dismissed on this basis.The Human Rights Law Discrimination Claims Fail to Allege Unequal Treatment*3 Plaintiff has asserted various claims under both the New York State and City Human Rights Laws. Because the NYCHRLis “construed more liberally than the NYSHRL, if the plaintiff's claims fail[] under the former, they would necessarily fail underthe latter.” Goolsby v. City of New York, 236 A.D.3d 404, 405 [1st Dept. 2025]. This is because the City HRL has “uniquelybroad and remedial purposes, which go beyond those of counterpart State or federal civil rights laws.” Russell v. New York Univ.,204 A.D.3d 577, 578 [1st Dept. 2022]. Turning first to the claims for discrimination, Plaintiff argues that he was discriminatedagainst for his membership in the protected class of gay men. Much of the allegations by Plaintiff do not, even taken for trueand interpreted with every favorable inference, lend themselves to a discrimination claim. For instance, it is difficult to see howthe claim that Defendant unduly pressured Plaintiff to obtain controlled substances for Defendant's personal use can possiblybe related to discrimination against Plaintiff on the basis of his orientation.The only allegations Plaintiff makes that would go towards a discrimination claim based on orientation are that Defendant 1)once commented that he did not “agree with the gay lifestyle”; and 2) displayed Nazi-related books and objects that madePlaintiff uncomfortable, given the treatment of LGBTQ+ individuals in the Nazi regime. There are factual disputes here, asDefendant argues that the hat Plaintiff viewed as a Nazi hat is simply a German hat from the 1970s, and that the books Plaintiffrefer to are academic in nature. On a motion to dismiss, the facts pled by Plaintiff are taken to be true and factual disputestypically requires that the motion be denied.But a claim for discrimination under the Human Rights Laws cannot succeed if “the offending actions are no more than pettyslights or trivial inconveniences.” Franco v. Hyatt Corp., 189 A.D.3d 569, 570 [1st Dept. 2020]. The first allegation is no morethan a petty slight, and Plaintiff himself characterizes the single comment as “casual.” The present case is distinguishable fromother validly pled discrimination claims, such as Doe. There, the plaintiff endured years of “constant homophobic slurs” amongother discriminatory actions. Doe v. New York City Police Dept., 190 A.D.3d 411, 412 [1st Dept. 2021]. Here, there was a single“casual” comment made that Defendant did not “agree with the gay lifestyle.” This is not sufficient to sustain a discriminationclaim under even the broad NYCHRL. See also Sandiford v. City of New York Dept. of Educ., 94 A.D.3d 593, 595 [1st Dept.2012] (holding that “repeated derogatory remarks regarding gays and lesbians” was sufficient to raise a question of fact fora discrimination claim).The question is then whether the alleged open display of Nazi memorabilia constitutes discrimination under either the City or theState Human Rights Law. While there are clear questions of fact and credibility in this matter, taking the Plaintiff's allegationsas true Defendant displayed material that was sympathetic to the Nazis. Under the uniquely broad interpretation required byNYCHRL, the display of pro-Nazi material in the workplace could be considered to be more than a trivial inconvenience. But
Wheat v. Vichie, 2025 WL 3089438 (2025) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.4fundamental to a claim for discrimination under either statute is the allegation of unequal treatment. A plaintiff must allege tohave been “treated differently or worse than other employees.” Harrington v. City of New York, 157 A.D.3d 582, 584 [1st Dept.2018]. Here, Plaintiff does not allege that he treated differently from any other employees, nor does the display of memorabiliain the workplace, open to any and all employees, lend itself to such an inference. Therefore, the first and fourth causes of actionfail to state a claim.The Hostile Work Environment Causes of Action Fail to State a ClaimPlaintiff's second and fifth causes of action assert claims for a hostile work environment under both the NYSHRL and theNYCHRL. Much of the allegations Plaintiff makes in support of these claims center around claims that Defendant became lessfriendly with him after Plaintiff (who seems to be laboring under a severe misapprehension of what the Fifth Amendment andthe right against self-incrimination means) began to be reluctant to continue to engage in illegal drug activities. Additionally,there is repeated reference to a somewhat confusing incident with two strange men who at some point looked around Plaintiff'sapartment for reasons that are unclear. As best as the Court is able to determine, whatever occurred in that incident has noconnection to Defendant and the claims asserted other than wild speculation and conclusory statements. The other allegationsare the same Nazi memorabilia display allegations that formed the basis of the discrimination claim.*4 The determination of whether a workplace was hostile requires “looking at all the circumstances, including the frequencyof the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance.”Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 310 [2004]. In order to forestall the merging of discrimination andhostile workplace claims, the First Department has drawn attention to the differences between the two claims, noting that adiscrimination claim involves unequal treatment. Williams v. New York City Hous. Auth., 61 A.D.3d 62, 78 -- 79 [1st Dept.2009]. While the display of pro-Nazi memorabilia, if true, would be objectionable, it falls short of what the Court of Appealsreferred to as creating “an objectively hostile or abusive environment.” Forrest, at 311. Furthermore, the Court of Appeals hasheld that “to prove a hostile work environment [under the NYCHRL], the burden is on the employee to show that they weretreated less well on the basis of a protected classification.” Russell v. New York Univ. 42 N.Y.3d 377, 401 [2024]. As with thediscrimination claims, Plaintiff has not alleged that they were treated differently from any other employee. They even allegethat, to the extent that Defendant and not his wife was responsible for the display of the objectionable material, it was donefor private reasons unrelated to Plaintiff. Therefore, Plaintiff has failed to allege facts that support a claim for hostile workenvironment under either the NYSHRL or the NYCHRL. Dismissal of the second and fifth causes of action is proper.The Retaliation Causes of Action Fail to State a ClaimPlaintiff's third and sixth causes of action are for retaliation under the NYSHRL and the NYCHRL. A prima facie case underthe State HRL requires a showing by the plaintiff that “(1) he/she has engaged in a protected activity, (2) his/her employer wasaware of such activity, (3) he/she suffered an adverse employment action based upon the activity, and (4) a causal connectionexists between the protected activity and the adverse action.” Harrington v. City of New York, 157 A.D.3d 582, 585 [1st Dept.2018]. Under the City HRL, instead of an adverse action the plaintiff must only show “that the defendant took an action thatdisadvantaged him or her.” Id. Here, Plaintiff alleges that he expressed “concerns” over the alleged requests to procure controlledsubstances but that he repeatedly continued to obtain the substances. He claims that it was as he started to be less willing toparticipate in an illegal drugs scheme that Defendant began to be rude to him in the workplace. Plaintiff alleges that while hewas ostensibly terminated due to performance issues, it was really motivated by Plaintiff's growing reluctance to continue toillegally procure controlled substances for Defendant.As addressed above, claims under both Human Rights Laws must start with the plaintiff having engaged in a protected activity.Under both sets of law, protected activity consists of “opposing any practice forbidden” by the relevant statute. Fletcher v.Dakota, Inc., 99 A.D.3d 43, 51 [1st Dept. 2012]. Plaintiff has not shown, and the Court is not aware of, any provision in eitherstatute that makes “being less willing to continue to engage in illegal actions” a protected activity. Furthermore, even assuming
Wheat v. Vichie, 2025 WL 3089438 (2025) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.5that Plaintiff was fired for not being willing to freely procure controlled substances for Defendant, it is unclear how that wouldreasonably deter others from engaging in a protected activity. Finally, it is unclear from the amended complaint to what extentit was Defendant or a non-party to this action that actually directed Plaintiff to illegally procure the substances in question.Plaintiff has failed to state a valid claim for retaliation under either the NYCHRL or the NYSHRL, and therefore dismissal ofthe third and sixth causes of action is proper.The Labor Law Claims for Unpaid Overtime and Failure to Provide Wage Notice Are Sufficiently PledThe seventh cause of action is for unpaid overtime under “New York Labor Law §§ 190 and 650” [sic]. Plaintiff alleges thathe “regularly worked in excess of 40 hours per week” but was not paid overtime. Defendant moves to dismiss, arguing that theamended complaint fails to allege any facts supporting this claim. A claim for unpaid overtime under Labor Law §§ 191 and663 is sufficiently pled when it is alleged that the plaintiff worked more than 40 hours in a week and was not paid for overtime.Kirby v. Carlo's Bakery 42nd & 8th LLC, 212 A.D.3d 441, 442 [1st Dept. 2023]. It is not required, at this stage, to recite theparticular dates or weeks for which the plaintiff was allegedly underpaid. Rosario v. Hallen Constr. Co., Inc., 214 A.D.3d 544,544 [1st Dept. 2023]. Therefore, the seventh cause of action validly states a claim and should not be dismissed. The eight causeof action alleges that Plaintiff was not provided with a wage notice pursuant to NYLL § 195. This allegation is sufficient tostate a valid claim. Kirby., at 442. Therefore, dismissal of this claim at this stage would be improper.The Labor Law Claims for Untimely Wage Payments and Whistleblower Retaliation Do Not State Valid Claims*5 The ninth cause of action is for untimely wage payments pursuant to NYLL § 191. Plaintiff alleges that he qualified as amanual worker and therefore was entitled to weekly and not monthly wage payments. But “employees serving in an executive,managerial or administrative capacity do not fall under section 191 of the Labor Law.” Pachter v. Bernard Hodes Group, Inc.,10 N.Y.3d 609, 616 [2008]. Here, Plaintiff himself characterizes his role as administrative, performing “household and familyassistant duties” and “domestic”, “household management tasks.” Labor Law § 190 defines a manual worker as “a mechanic,workingman, or laborer.” The allegations that Plaintiff at times conducted errands do not qualify him as a manual laborer underthe Labor Law. Because the ninth cause of action fails to state a cause of action, dismissal is proper.The tenth cause of action is for whistleblower retaliation under Labor Law § 740. Plaintiff alleges that Defendant retaliatedagainst him by terminating him shortly after he expressed concerns about “potential arrest and reduced compliance” relatingto the illegal activity that Plaintiff repeatedly and freely admits to committing. Under Section 740(2)(c), an employer cannottake retaliatory action against an employee for objecting to or refusing to participate in illegal activity. The Court of Appealshas held that this section is “triggered only by a violation of a law, rule or regulation that creates and presents a substantial andspecific danger to public health and safety.” Remba v. Federation Employment & Guidance Serv., 76 N.Y.2d 801, 802 [1990].Furthermore, while there only need be a threat to a single member of the public, the public danger must be shown to be “basedon more than mere speculation” and Labor Law § 740 “envisions a certain quantum of dangerous activity before its remedies areimplicated.” Villarin v. Rabbit Haskel Lookstein School, 96 A.D.3d 1, 7 [1st Dept. 2012]. According to Plaintiff's allegations,the controlled substances that he obtained illegally were intended for “the sole use and consumption of Defendant.” By his ownallegations, Plaintiff was not asked to break a law that presented a threat to any member of the public, and therefore the remediesof Labor Law § 740 are by law unavailable to him. The tenth cause of action is dismissed.Plaintiff Fails to State a Claim for IIEDIn the final cause of action, Plaintiff pleads a claim for intentional infliction of emotional distress. This claim is based on theallegations that Defendant placed Nazi books and objects in plain view in the house while Plaintiff was working. A claim forIIED has an “exceedingly high legal standard”, and even conduct that is “abhorrent”, “offensive and insulting” fails to meet thehigh bar. Russell v. New York Univ., 204 A.D.3d 577, 581 [1st Dept. 2022]. At most, Plaintiff here has alleged that Defendantdisplayed books and other materials that were sympathetic to the Nazir regime. While if true, such behavior would be abhorrent,
Wheat v. Vichie, 2025 WL 3089438 (2025) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.6offensive, and insulting, it would not meet the IIED requirement of behavior that is “beyond all possible bounds of decency,and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id. Therefore, the eleventh cause of actionfails to state a valid claim and must be dismissed. Accordingly, it is herebyADJUDGED that the motion to dismiss the complaint is granted except as to the seventh and eighth causes of action; and itis furtherORDERED defendant is directed to serve an answer to the complaint within 20 days after the date of this order.11/3/2025DATE<<signature>>LYLE E. FRANK, J.S.C.End of Document© 2026 Thomson Reuters. No claim to original U.S. Government Works.
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