view of plaintiff's testimony that there were a lot of people working at Bulletproof (see
plaintiff's EBT, p 25). Although discovery is complete and a note of issue has been filed,
virtually no personnel or corporate documentary evidence has been presented to this
court. Even less information is available about Perfect World, since David has not been
deposed and has in effect been frozen out of this action because the court (Solomon, J.)
precluded him from testifying at trial unless he appeared for a full EBT 30 days prior to
trial (mot. seq. no. 004 decision dated 9/19/11, at exhibit 1 to cross-moving papers),
which does not seem likely to occur. Jeffrey testified that David ran Perfect World out of
his apartment, but it is unclear whether Perfect World had any other employees and, if so,
if they also worked out of David's apartment. The complaint contains various references
to other employees (presumably Bulletproof's), but plaintiff testified that she cannot
remember their names or even how many there were. For all intents and purposes, this
renders all potential non-party witnesses unavailable and muddies the waters about who
did what for which company.
Although there is generally a subjective component to sexual discrimination claims,
it usually entails the offensiveness of the allegedly discriminatory conduct. In this court's
experience, this is the first time that the identity of the plaintiff's supervisor is the
subjective element, and plaintiff has not furnished any precedent of such a case.
Nonetheless, the U.S. Supreme Court appears to have anticipated this situation. "If, in the
unusual case, it is alleged there is a false impression that the actor was a supervisor, when