Hostile Work Environment, Sexual Harassment, and Race/National Origin Claims Continue Against New York Post and Col Allan

On October 28, 2013, the Southern District of New York issued its opinion in Guzman v. NY Post, holding that plaintiff Sandra Guzman presented sufficient evidence to proceed on her hostile work environment, discriminatory termination, and retaliation claims. The decision was (I am sure happily) covered by the Daily News here.

Plaintiff is a black, Hispanic, Puerto Rican female who worked at the Post as an associate editor from July 2003 to September 2009.  She alleged that she was discriminated against, in part due to her objection to a controversial cartoon that many interpreted as depicting President Obama as a chimpanzee. She sued under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 1981, the New York State Human Rights Law, and the New York City Human Rights Law.

After dismissing plaintiff’s claims against News Corp., the indirect corporate parent of plaintiff’s undisputed employer the Post (as such claims failed under the so-called  “single employer” and “joint employer” doctrines), the court turned to the merits.

Hostile Work Environment / Sexual Harassment

Plaintiff presented enough evidence on her sexual harassment claims:

Ms. Guzman has provided evidence of a sexually charged environment at the Post, permeating the newsroom, meetings and holiday parties. Ms. Guzman testified that [Les] Goodstein leered at her in a suggestive manner and commented on her appearance at every one of their frequent encounters. The evidence also includes reports of an inappropriate request for a sexual favor, supervisors sleeping with interns and an editor calling his female employees his “harem.”

Ms. Guzman further provided evidence that Defendant [Col] Allan showed her and female coworkers a picture of a naked man, discussed the sexual exploits of a colleague, reportedly visited and entertained visitors at a strip club during the work day, referred to women as “old bitches,” and reportedly inappropriately touched a female colleague and made lewd remarks to her at an office party. In addition to Ms. Guzman’s testimony, the record reflects the testimony of others who participated in or witnessed incidents of harassment. If a jury were to credit Ms. Guzman’s evidence, it could reasonably find that the sexual harassment was severe and pervasive under the federal and state statutes and that the conduct complained of was neither petty nor trivial under the NYCHRL.

The court rejected defendants’ argument that plaintiff was “not subjectively offended based on evidence that she interacted civilly with the co-workers who were harassing her and engaged in sexual behavior herself,” clarifying that:

Civility toward a harasser does not excuse harassment or signify subjective acceptance, particularly in an employment setting. Moreover, sexual harassment by Plaintiff’s supervisors is not excused by whatever sexual conduct Plaintiff may have engaged in with others.

It also rejected defendants’ argument that plaintiff did not introduce evidence that she suffered discrimination “because of” her sex, pointing to the “gender based nature of the alleged harassing incidents.”

Plaintiff also presented sufficient evidence regarding the adequacy of her complaints about sexual harassment, namely her use of company procedures to complain of harassment and her complaints to three members of the Post’s executive management team.

Hostile Work Environment / Race and National Origin

As to this claim, the court held:

Plaintiff’s evidence of severe or pervasive harassment on the basis of her race and national origin also raise questions of fact sufficient to defeat summary judgment. Mr. Reidel sang “I want to be in America” in a Spanish accent to Ms. Guzman on many occasions and once called her “Cha Cha # 1.” Defendant Allan asked whether a Hispanic baseball star, whom Ms. Guzman interviewed, brought a weapon to an interview, allegedly implying that he was a criminal. Ms. Guzman argues that Ms. Acquila’s comments about Ms. Guzman’s candles, although facially neutral, were racially charged.

While declining to consider defendants’ “allegedly racist decision to publish” the Obama cartoon on First Amendment grounds, it recognized that plaintiff’s “hostile work environment claim also encompasses the way that the Post dealt with the publication of the Cartoon and the issues that arose after the Cartoon was published, including the increased racial tensions in the office.”

Specifically, plaintiff

states that she complained to Human Resources that the Cartoon exemplified the Post’s treatment and attitude toward African–Americans generally and at the Post, and also complained about Defendant Allan’s racially demeaning conduct and Mr. Reidel’s singing. She also complained to members of the News Corp. diversity committee and others about racial as well as other forms of discrimination.

Finally, the court considered plaintiff’s evidence of racial harassment not observed by her, but by others:

[T]he mere fact that the plaintiff was not present when a racially derogatory comment was made will not render that comment irrelevant to his hostile work environment claim because the fact that a plaintiff learns second-hand of a racially derogatory comment or joke by a fellow employee or supervisor also can impact the work environment. Plaintiff’s evidence consists of Ms. Guzman’s testimony and the testimony of several other individuals concerning comments by Defendant Allan that can be interpreted as racially derogatory, including dismissing protestors because they are “uneducated” and “minorities” and openly referring to a black copy assistant as a “damn girl” in the newsroom.

The court concluded:

Taken together, the first-hand and second-hand experiences and observations, as well as Plaintiffs’ complaints, are sufficient to raise an issue of fact for the jury as to whether Plaintiff’s work environment was altered because of her race and national origin and whether her complaints constituted her reasonable availment of corrective opportunities that the Post provided. The jury also could conclude that Plaintiff’s claims of race and national-origin discrimination are neither petty nor trivial under the NYCHRL.

Discriminatory Termination – Race and National Origin

Applying the established McDonnell Douglas Corp. v. Green burden-shifting analysis, the court held that plaintiff submitted sufficient evidence to show that her termination was motivated by impermissible discrimination.

As to the prima facie case, the parties disputed only the fourth element, namely, whether plaintiff’s termination gave rise to an inference of discrimination.  The court recited the legal standard for this element:

A showing of disparate treatment—that is, a showing that the employer treated plaintiff less favorably than a similarly situated employee outside his protected group—is a recognized method of raising an inference of discrimination for purposes of making out a prima facie case. To raise an inference of discrimination with evidence of disparate treatment, the plaintiff and the comparator must be “similarly situated in all material respects. … The “material respects” test does not require a showing that both cases are identical. Rather, [t]he standard for comparing conduct requires a reasonably close resemblance of the facts and circumstances of plaintiff’s and comparator’s cases. This involves an examination of the acts, context and surrounding circumstances. … Whether two employees are similarly situated ordinarily presents a question of fact for the jury.

Plaintiff argued that she was treated differently when Tempo (a newspaper section that plaintiff was brought on to manage) was discontinued than a white editor (Margi Conklin) was when her section (Page Six) was decreased. Specifically, plaintiff was terminated, whereas Ms. Conklin was retained and merely transferred. Defendants argued that Ms. Conklin was not an appropriate “comparator”.  The court disagreed, finding that the question of whether the two employees are “similarly situated” must be resolved by a jury.

Having found that plaintiff established a prima facie case, the court next determined that defendants met their burden of providing a “legitimate, nondiscriminatory reason for the employment decision at issue.”

Defendants did so:

Defendants argue that Ms. Guzman’s position was eliminated as result of Tempo’ s closing because it failed to sell sufficient advertising and was unprofitable. Defendants have submitted evidence that Tempo sold fewer and fewer ads, resulting in a decrease in editorial pages between 2004 and 2009 when Tempo was discontinued. After the Tempoeditor position was eliminated, no suitable alternative position was available for Ms. Guzman and Ms. Guzman’s few remaining duties returned to the Special Sections editor.

These explanations are sufficient to rebut the presumption of discrimination on the basis of race and national origin established by Plaintiff’s prima facie case.

The court therefore turned to the issue of pretext. At this stage of the analysis:

To avoid summary judgment, Plaintiff must identify evidence that would allow a reasonable fact finder to conclude that “the legitimate, non-discriminatory reasons proffered by the defendant[s] were false, and that more likely than not discrimination was the real reason for the adverse employment action.

Plaintiff presented sufficient evidence that defendants’ stated reasons for terminating plaintiff were pretextual:

First, Defendants argue that Ms. Guzman’s position was eliminated because Tempo failed and was closed. Plaintiff points out that the decision to close Tempo completely was not made until after she was fired, although the decision to reduce the size and frequency of Tempo was made prior to Ms. Guzman’s discharge. In addition, while Defendants rely heavily on data suggesting that Tempo failed financially, Plaintiff counters with evidence of Tempo’s positive performance as compared with the New York Post as a whole, and measured in terms of operating income. Plaintiff’s evidence creates a factual dispute as to whether Defendants decided to discharge her because Tempo failed.

The record also reflects that Ms. Guzman could have been transferred to an open editor position as an alternative to terminating her. Defendant Allan testified that he fired Ms. Guzman rather than offer her the open position because he believed that she would be dissatisfied with the pay decrease; conversely, Ms. Guzman testified that she would have accepted the open position despite the substantial reduction in salary. While an employer’s concern with employee “morale problems” may be genuine, a reasonable fact finder assessing credibility could determine that Defendants stated reasons for refusing to consider Ms. Guzman for the open position were pretexual.

Plaintiff’s evidence of pretext is also buttressed by circumstantial evidence of discriminatory animus at the Post, including disputed evidence of discriminatory remarks made by Defendant Allan, who had decision-making authority.

Retaliation

Plaintiff presented sufficient evidence on her retaliation claims under Title VII, Section 1981, and the State and City Human Rights Laws to survive summary judgment.

Retaliation claims are also analyzed under the McDonnel Douglas framework. As to plaintiff’s prima facie case, plaintiff presented

evidence of a series of allegedly retaliatory acts culminating in her termination, including increased scrutiny of her Tempo expenses, refusal of the request to cover the investiture of Justice Sotomayor and the retroactive lowering of her performance rating from “Exceeds Standards” to “Meets Standards” by Defendant [Col] Allan.

Defendants argued that they were not aware of plaintiff’s complaints, and that there is no evidence of causation between plaintiff’s complaints and her termination.  The court disagreed on both counts.

As to the first issue:

Plaintiff has submitted evidence sufficient for a jury to conclude that Defendants were aware of Ms. Guzman’s complaints about the Cartoon and the racist and sexist environment at the Post. To satisfy the knowledge requirement for her retaliation claim, Plaintiff must show only general corporate knowledge that the plaintiff has engaged in a protected activity. Guzman also has submitted evidence that her complaints (particularly about the Cartoon) were generally known at the Post as well as to Defendant Allan.

As to the second issue, causation, the court cited the well-established rule that “[t]he causal connection needed for proof of a retaliation claim can be established indirectly by showing that the protected activity was closely followed in time by the adverse action.”

It rejected defendants’ argument that the seven-month gap between plaintiff’s complaint about the cartoon and her termination was insufficient as a matter of law to give rise to an inference of retaliation.

Rather,

There is no bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the [protected activity] and an allegedly retaliatory action. This has allowed [courts] to exercise … judgment about the permissible inferences that can be drawn from temporal proximity within the context of each individual case. …

Here, Plaintiff’s evidence of unfavorable treatment culminating in her termination is enough to permit a reasonable factfinder to infer causation.

After determining that defendants offered a legitimate, non-retaliatory reason for plaintiff’s termination, it proceeded to evaluate (under the federal and state statutes) that “but for” the protected activity, she would not have been fired.

Plaintiff presented sufficient evidence to establish causation:

Plaintiff argues that the evidence of pretext, discussed above, supports a finding that Plaintiff would not have been fired but-for her complaints. Ms. Guzman also argues that the evidence of the disparate treatment of Ms. Conklin supports her claim that Defendants’ reasons for terminating her employment are pretextual. … In addition, Plaintiff presents evidence that other black employees, who complained about the Cartoon, were similarly discharged.

The evidence is sufficient for a jury to find a “but-for” causal connection between Ms. Guzman’s complaints about the Cartoon and her termination, or to find that Ms. Guzman would not have been fired in the absence of her complaints about the Cartoon. There is likewise sufficient evidence to raise an issue of fact as to whether Ms. Guzman’s discharge would deter a reasonable person from engaging in protected activity. Accordingly, Defendants’ motion for summary judgment on Ms. Guzman’s retaliation claims is denied.

Individual Liability of Col Allan

Finally, the court denied defendants’ motion on plaintiff’s individual liability claims (under Section 1981, the New York State Human Rights Law, and the New York City Human Rights Law).

While Title VII claims may not be asserted against individuals, individuals may be held liable under Section 1981 “where there is some affirmative link to causally connect the actor with the discriminatory action.”

In addition, the State and City Human Rights Laws impose liability against “an individual who becomes a party to an employee’s discrimination by encouraging, condoning, or approving it” and makes it unlawful “for any person to aid, abet, incite, compel or coerce” unlawful discrimination or retaliation.  Thus, a co-worker may be held liable under these statutes if he or she “actually participates in the conduct giving rise to a discrimination claim … even though that co-worker lacked the authority to either hire or fire the plaintiff.”

Applying these principles, the court held that:

Plaintiff has adduced sufficient evidence to support her discrimination, retaliation and harassment claims on this motion. In addition, Plaintiff has adduced sufficient evidence of Defendant Allan’s connection to the alleged discrimination so that the individual claims against him survive. Defendant Allan as part of the Executive Committee made the decision to terminate Ms. Guzman, allegedly for discriminatory and retaliatory reasons. His comments and behavior also ostensibly contributed to her hostile work environment.

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