It’s sadly a story as old as can be: a great performing employee receives unwelcome and unprofessional advances from their supervisor. We learned from #MeToo that sexual harassment is rampant everywhere. So, what’s unique about this story? Several companies have been in the news for trying to sweep sexual harassment claims under the rug. In this particular case, however, the attempt is epic. And, thankfully, an epic failure.Rory Vitagliano started working for high-end furnishings and design store Jonathan Adler in January 2020. Mr. Vitagliano was hired as the Assistant Store Manager of the company’s flagship Lexington Avenue store in New York City.Through his dedication, he soon became one of the company’s top sales staff. Shortly after, COVID-19 shutdowns began and Jonathan Adler, like many other businesses, had to close their doors as part of pandemic management protocols.As many did, Mr. Vitagliano began working from home. Despite the change in working location, he continued his stellar streak of sales. What no one knew at the time is that he was also silently putting up with unwanted touching and inappropriate comments from his immediate supervisor, Chris Buckner. The comments covered subjects such as Mr. Vitagliano’s appearance and sex life. In early January 2020, while on a conference call, Mr. Buckner allegedly pinched Mr. Vitagliano’s inner leg and said, “[I’m excited to work with [you].”In addition to the above unprofessional conduct, Mr. Vitagliano stated that Mr. Buckner would approach him from behind and run his fingers through Mr. Vitagliano’s hair. Lest there be any question as to the nature of these offenses, Mr. Vitagliano stated that Mr. Buckner frequently commented that Mr. Vitagliano’s “ass … look[ed] good” in certain pants he wore. Once COVID restrictions started easing up, Mr. Vitagliano would go to the store on Lexington Avenue to prepare orders to ship. On one such occasion, he stopped to pick up Mr. Buckner. During the ride, Mr. Buckner again questioned Mr. Vitagliano about his sex life, including the identity of his current sexual partners.Finally fed up, he complained about the sexual harassment to Area Manager, Linet Martin, at which point he alleges she told him to remove the term “sexual harassment” from his complaint. Ms. Martin said an investigation would be conducted into the matter.No one updated Mr. Vitagliano on the status of the investigation. When he asked Ms. Martin about it, he received this gem of an answer: Mr. Buckner watched a video on sexual harassment training and, therefore, had “done everything he needed to do to maintain his employment with the company.” About the only positive that resulted from the investigation was that Mr. Vitagliano, understandably no longer comfortable reporting to Mr. Buckner, started reporting directly to Ms. Martin. He was also assured that he would never have to work alone with Mr. Buckner again.When Jonathan Adler was able to re-open stores, they made the logical choice of starting with their flagship: Lexington Avenue. Mr. Vitagliano, Mr. Buckner, and three others reported for duty. Concerned about working alone with his harasser, Mr. Vitagliano asked Ms. Martin what Mr. Buckner’s days off were. She replied that “It’s none of [your] business.” Mr. Vitagliano and Mr. Buckner did, in fact, end up working alone together again.On a regular visit to the store, Ms. Martin commented that she had been the subject of a “hostile work environment complaint” and further stated that she knew who made it. While she did not elaborate, she then stated that, “We’ve done it before, and we’ll do it again - if we don’t like you, we’ll just get rid of you.”One would think that Jonathan Adler wouldn’t compound these glaring errors.One would be wrong.It’s worth noting that at no point in his brief time with Jonathan Adler did Mr. Vitagliano have any attendance or disciplinary issues. Instead, he was the model employee. He was even praised by Justin Sonfield, the CEO, in September of 2020. Mr. Sonfield state that he knew of and was supportive of Mr. Vitagliano’s goal of moving up in the company. In a bizarre contrast to her behavior after Mr. Vitagliano filed his sexual harassment complaint, Ms. Martin herself had even complimented his performance. She told him on several occasions that, “Rory, you’re headstrong and that’s exactly what we need.”It appears, from the company’s next action, that Mr. Vitagliano’s complaint was to have further negative impact on his job.When the company re-opened its Upper West Side store (an historically under-performing location), Mr. Vitagliano was shipped off to work there while Mr. Buckner remained at the Lexington Avenue location. As there was a heavy commission component to Mr. Vitagliano’s compensation, this effectively would have taken money out of his pocket and could be seen as retaliation.Rather than complain, he did what he did at the Lexington Avenue store: he rose to the challenge. In doing so, he:

• Coached an underperforming salesperson;

• Solved customer complaint issues with proficiency and professionalism, garnering the attention of both Ms. Martin and his new store manager, Andrew Friedman;

• Produced almost 80% of the Upper West Side store’s revenue in July/August 2020.

  Photo by Frank Busch on Unsplash

Perhaps his biggest contribution to that underperforming store was the fact that, despite the global pandemic, the Upper West Side location was the only Jonathan Adler store to exceed its year-over-year sales for August 2020.Taken together, all of this - including the positive feedback from the CEO - shows Rory Vitagliano to be a superstar salesperson and Assistant Manager. In September 2020, the normal practice for the payment of monthly commissions was to include them with the first paycheck of the following month. That pay date came but Mr. Vitagliano’s commission pay did not. He was to be paid $2,000 for August commissions. He asked about the missing commission payment and was told that the Labor Day holiday caused delays and it would be included in the next paycheck. It wasn’t.Upon bringing this to Ms. Martin’s attention, Mr. Vitagliano was told that the company could issue commission payments up to three pay periods after the month in which they were earned. However, Jonathan Adler offered to immediately wire the payment to Mr. Vitagliano, who accepted the offer and received the wire later that day.The end? No. Not by a long shot.Four days later, on September 29, 2020, Ms. Martin fired Mr. Vitagliano over the phone. When he asked why, she told him that he was not the “right fit” for Jonathan Adler. Not the “right fit”? An employee the company attempted to recruit twice previously (May 2019 and November 2019), with zero performance or attendance issues, who was retained during pandemic layoffs and turned an underperforming store into the best store in the chain for the month of August 2020 is not the “right fit” for the company. The praise from the CEO - and Ms. Martin herself - was obviously forgotten. As were compliments from customers and, in fact, Andrew Friedman, Mr. Vitagliano’s manager at the time of his unlawful termination. Mr. Friedman sums the termination up best, saying he was “totally blindsided” by the company’s action. He further stated that he had “no reason” to want Mr. Vitagliano’s employment terminated, mainly because Mr. Vitagliano was a “f*cking money machine” performance-wise.At this point, you would not be blamed if you thought that Mr. Vitagliano’s next step was to talk to a lawyer. However, Jonathan Adler had a few more surprises for him first:

• He was never paid his September 2020 commission;

• His insurance coverage was discontinued on September 27, two days before he was terminated and two days after he questioned the missing August commission payment;

• His coworkers were told he was fired because he “stopped showing up” to work.

Mr. Vitagliano has indeed spoken to a lawyer. A complaint was filed on June 13, 2021 seeking all available relief again Jonathan Adler for “engaging in unlawful retaliation and for fostering and permitting an environment that allowed him to be repeatedly harassed by his supervisor.”Mr. Vitagliano seeks relief under the following:

• Title VII of the Civil Rights Act of 1964;

• The New York State Human Rights Law (NYSHRL);

• The New York City Human Rights Law (NYCHRL); and

• The New York Labor Law (NYLL).

The complaint asks for a jury trial. A statement from Lawrence M. Pearson and Tanvir H. Rahman, attorneys at Wigdor LLP follows:“Companies will commonly resort to a vague reason such as ‘fit’ when they terminate an employee for discriminatory or retaliatory reasons and lack a specific pretext.  Mr. Vitagliano clearly was an asset to Jonathan Adler and was praised for his strong performance by managers and even the CEO.  His abrupt termination reeks of pretext, especially in light of the company’s failure to properly investigate his complaint of sexual harassment by his male supervisor, and we are committed to vindicating Mr. Vitagliano’s rights and holding Jonathan Adler and its management responsible.”