Evidence of Intimidation Into Sexual Relationship Overcomes Summary Judgment for Defendants on Sex Discrimination and Retaliation Claims

In Overbeck v. Alpha Animal Health, P.C. (App. Div. 2nd Dept. Jan. 28, 2015), the Appellate Division, Second Department reversed the lower court’s order granting summary judgment to defendants on plaintiff’s sex discrimination and retaliation claims under the New York State and City Human Rights Laws.

This decision illustrates that even “voluntary” sexual conduct – i.e., conduct that is not literally forced – may give rise to a sex discrimination claim, as long as it was “unwelcome”.

Here are the facts and procedural history, as summarized by the court:

[Plaintiff, a veterinary technician formerly employed by defendants] alleged, among other things, that Cohen, who owned and managed the hospital defendants, used his position of power to engage her in humiliating, bizarre, and intolerable forms of sexual discrimination, which included sexual intercourse and perverted behavior, jokes, and contact. According to the plaintiff, when she eventually rebuffed the sexual advances, her employment was immediately terminated.

[D]efendants moved for summary judgment dismissing the complaint. Relying on the deposition testimony, an affidavit from another employee of the hospital defendants, and transcripts of numerous text-message and instant-message communications between the plaintiff and Cohen, the defendants argued that the relationship between the plaintiff and Cohen was welcomed and consensual, that it had no impact on employment decisions, and that the plaintiff’s employment was ended because the plaintiff allegedly advised Cohen’s wife of the extramarital affair and Cohen’s wife “demanded” that he terminate the plaintiff’s employment. The Supreme Court granted the defendants’ motion, concluding that their evidence established, prima facie, a legitimate nondiscriminatory reason for terminating the plaintiff’s employment. The Supreme Court further concluded that the plaintiff, in opposition to this showing, failed to raise a triable issue of fact. Specifically, the Supreme Court rejected the plaintiff’s contention that the sexual conduct was unwelcome and that Cohen used his position to intimidate her into the relationship. The plaintiff appeals.

Citing the Supreme Court’s decision in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986), the court explained its decision to reverse:

[D]efendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging discrimination under either the New York State or New York City Human Rights Law. The Supreme Court’s determination to direct the dismissal of the complaint hinged on its finding that the relationship between the plaintiff and Cohen was of a consensual nature, and that the plaintiff’s employment was terminated because Cohen was attempting to reconcile with his wife. However, the evidence submitted by the defendants, which included a transcript of the plaintiff’s deposition testimony, failed to eliminate all triable issues as to whether Cohen used his position to intimidate her into the relationship and as to whether the sexual conduct on his part was, in fact, “unwelcome.” In this regard, the plaintiff, at her deposition, consistently testified that the sexual relations were not welcome, that she felt as though she had no other choice but to participate, and that when she complained to Cohen, he made it very clear that there would be repercussions if she did not participate. In considering this testimony, we recognize that the question of whether particular conduct was “unwelcome” presents “difficult problems of proof and turns largely on credibility determinations committed to the trier of fact”. The Supreme Court appears to have focused on the voluntariness of the plaintiff’s participation in the claimed sexual episodes. However, “the fact that sex-related conduct was ‘voluntary,’ in the sense that the [plaintiff] was not forced to participate against her will, is not a defense,” and the “correct inquiry is whether [the plaintiff] by her conduct indicated that the alleged sexual advances were unwelcome”.

The court therefore determined that defendants failed to establish their prima facie entitlement to judgment as a matter of law.

HR.BLR.com discusses the case here.

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