In Ingrassia v. Health & Hosp. Corp., No. 14 CV 1900 PKC, 2015 WL 5229444 (E.D.N.Y. Sept. 8, 2015), the Eastern District of New York held that plaintiff plausibly alleged claims of sexual harassment/hostile work environment, retaliation, and constructive discharge under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (ADEA).
The court cited and applied two recent Second Circuit cases – Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. Aug. 3, 2015) and Vega v. Hempstead Union School Dist., 2015 WL 5127519 (2d Cir. Sept.2, 2015) – that clarified the pleading standards in employment discrimination cases.
Here are plaintiff’s allegations, as summarized by the court:
One of Plaintiff’s supervisors, Eric Morales, made comments that “he did not like women and that they were only good for sex,” and that he would “donat[e] the older women [employees] to a different department because he had no use for them.” Her subsequent supervisor, Kevin Schwendemann, “continued and increased the same type of insulting behavior.” He would comment that “she could not keep up with the girls” and that she was “the oldest woman.” He would question when Plaintiff planned to retire, would stand over her and ask whether he was making her nervous, and make other insulting, derogatory comments. Though Plaintiff told him repeatedly that she was uncomfortable with these comments and that the comments constituted age discrimination, Schwendemann allegedly continued and even increased his comments.
Schwendemann also engaged in sexually harassing conduct by frequently coming within a foot of Plaintiff and grabbing himself in the groin so that Plaintiff could see. In addition, Schwendemann invaded Plaintiff’s privacy and harassed her by reading her medical records. Plaintiff continued to receive raises and favorable performance reviews while enduring her supervisors’ harassment.
Plaintiff complained to Schwendemann about his conduct and also wrote to her union representative to complain about Schwendemann. When Schwendemann found out about her complaint to the union, he retaliated against her by yelling at her in front of other employees and by docking her pay when she was only a few minutes late getting to work. Schwendemann also tapped Plaintiff’s phone to listen to her conversations, and would yell at her for no apparent reason. (Id.). Schwendemann did not do this to younger similarly situated employees-only older ones. (Id. at 7). On several occasions, Plaintiff returned to work from vacation to find her desk and belongings moved so that she was facing the wall, as if she was being punished.
The court dismissed plaintiff’s age and gender discrimination claims, finding that while “Plaintiff’s discrimination claims rest on her supervisors’ comments about her age and gender, as well as general comments about older women … [s]uch conduct, on its own, is insufficient to establish an adverse employment action for purposes of an ADEA or Title VII claim.”
Hostile Work Environment
As to plaintiff’s hostile work environment claims, the court explained:
[T]he Court finds that Plaintiff has plausibly alleged a claim for hostile work environment in violation of both Title VII and the ADEA. Plaintiff alleges that she was subjected to repeated comments about her gender and her age from two different supervisors, and further alleges that one supervisor sexually harassed her by grabbing himself in the groin in Plaintiff’s plain view. Plaintiff alleges that she was targeted because she was an older woman. While such allegations may not necessarily rise to the level of a prima facie case of hostile work environment, they suffice to give Defendant fair notice of Plaintiff’s claim. …
Defendant argues that the allegations in Plaintiff’s Complaint regarding Morales stating that “women [are] only good for one thing” and that he was “donating” older women to another department amounted to nothing more than stray remarks that are not probative of discrimination. Defendant also argues that Schwendemann’s remarks that plaintiff could not keep up with the other female employees and asking when she would retire are not probative of age discrimination. While these remarks may not be probative of age or gender discrimination when viewed in isolation, they are sufficient to provide Defendant with fair notice of a hostile work environment claim when viewed together and alongside Plaintiff’s allegations regarding Schwendemann’s sexual gestures. … These allegations plead facts sufficient to support the conclusion that Plaintiff faced harassment in the workplace of such quality … that a reasonable employee would find the conditions of her employment altered for the worse[.]
The court was careful to note, however, that “[w]hether she can plausibly establish a prima facie case of discrimination based on a hostile work environment is a question better addressed at the summary judgment stage.”
Next, the court held that plaintiff plausibly alleged claims of retaliation:
Here, Plaintiff alleges that she complained to both Schwendemann and her union representative about Schwendemann’s allegedly discriminatory and harassing conduct. By alleging that she complained to her supervisor, Plaintiff has plausibly alleged that Defendant HHC had notice of her complaint. Plaintiff further alleges that when Schwendemann learned of her complaint to the union, he yelled at her, docked her pay for being only a few minutes late, tapped her phone to listen to her conversations, moved her office furniture upon her return from vacation, and threatened disciplinary action against her if her phone etiquette “was not to his liking.” Such actions “could well dissuade a reasonable worker from making or supporting a charge of discrimination,” and therefore Plaintiff’s allegations serve to give Defendant fair notice of Plaintiff’s retaliation claims. The Court will allow Plaintiff’s retaliation claims under Title VII and the ADEA will therefore proceed.
Finally, the court held that plaintiff sufficiently alleged constructive discharge because of her age or gender:
Plaintiff’s hostile work environment claim provides the “necessary predicate” to her constructive discharge claim. … In addition, Plaintiff has alleged that she faced the following work conditions prior to her resignation: her supervisor’s reading of her medical records, the “tapping” of her work phone, movement of her office belongings and furniture upon her return from vacation so as to imply that Plaintiff was being punished, her supervisor yelling at Plaintiff “for no apparent reason,” and her supervisor humiliating Plaintiff by making “derogatory and insulting comments in front of the other office staff.” These allegations plausibly allege that Plaintiff faced “working conditions so intolerable” that she was compelled to resign, and are sufficient to put Defendant on notice of her constructive discharge claims. Accordingly, Plaintiff’s constructive discharge claims will proceed.