Court Denies Summary Judgment to Defendant Employer and Holds That Rejecting Sexual Harasser’s Advances Can Support a Retaliation Claim Under the NYC Human Rights Law

In Hernandez v. PFIP, LLC, No. 14 CIV. 4069 (LGS), 2015 WL 7758875 (S.D.N.Y. Dec. 1, 2015), the Southern District of New York denied defendants Planet Fitness’ motion for summary judgment on plaintiff’s retaliation claim under the NYC Human Rights Law.

Here is Judge Schofield’s analysis of that claim:

Plaintiff alleges two theories of retaliation. She asserts that her resisting Cordero’s sexual advances resulted in two forms of retaliation — (1) his forcing her to have sex with him and (2) Cordero’s issuing her a written warning for using her cell phone.

Regardless of whether Plaintiff asserts her retaliation claim under Title VII, state or city law, her first theory of liability cannot survive summary judgment. Plaintiff alleges that in mid-September, Cordero forced her to have oral sex with him after she told him she “did not want to do it.” Cordero forced her to have sex in spite of, and not because of, her resisting him. Plaintiff cannot make out a prima facie case of retaliation because she cannot show causation — that Cordero forced her to have sex because she resisted. Non-consensual sex forced on an employee by a supervisor in the workplace is actionable as discrimination, not retaliation.

Plaintiff’s second basis for a retaliation claim survives summary judgment on the NYCHRL claim. Plaintiff alleges that she rebuffed Cordero when he tried to hug her shortly after they had had sexual relations for the last time in early October, and that he retaliated about two weeks later by issuing her a written warning for using her cell phone. The first element of Plaintiff’s prima facie case is that she “opposed any practice forbidden as discriminatory under the NYCHRL.” Although it is unclear whether rejecting a harasser’s advances can constitute protected activity under Title VII or the NYSHRL, doing so can be a basis for a retaliation claim under the NYCHRL. …

The second element of Plaintiff’s prima facie case is that “the retaliatory or discriminatory act or acts complained of must be reasonably likely to deter a person from engaging in protected activity.” § 8–107(7). Plaintiff was given a disciplinary warning for telephone use, which under company policy was a terminable offense, and two people previously had been terminated for cell phone use. On these facts, Plaintiff has made a prima facie case showing that Cordero’s warning was “reasonably likely to deter a person from engaging in protected activity.”“ ‘[N]o challenged conduct may be deemed nonretaliatory’ [under the NYCHRL] unless ‘a jury could not reasonably conclude from the evidence that such conduct was …‘reasonably likely to deter a person from engaging in protected activity.’This ‘assessment [should] be made with a keen sense of workplace realities, of the fact that the ‘chilling effect’ of particular conduct is context-dependent, and of the fact that a jury is generally best suited to evaluate the impact of retaliatory conduct.

At the second step of burden shifting analysis, Cordero may rebut Plaintiff’s prima facie case by showing “legitimate reasons for his actions.” Cordero asserts that Plaintiff used her cell phone at work, contrary to the company’s zero tolerance policy, and that she admitted she had used her phone to call her mother. He maintains that she was shown on video going in and out of the backroom where she made a call, and that another employee complained that she was involved in a heated telephone conversation which members had overheard. This explanation for the warning is sufficient for the burden to shift back to Plaintiff.

At the third step of the burden shifting analysis, the evidence — or lack of it — in this case is sufficient for a reasonable jury to conclude “either that the defendant’s reasons were pretextual, or that the defendant’s stated reasons were not its sole basis for taking action, and that its conduct was based at least in part on discrimination.” Regarding pretext, Defendants have not submitted testimony from the complaining employee or the referenced video tape. Only Cordero’s self-serving testimony of what he saw on video and what another employee heard supports the assertion that Plaintiff used her phone at work. On this basis, a jury could reject his testimony of Plaintiff’s reported phone use and find that the reason for issuing the warning was pretextual.

Regarding a possible retaliatory motive, the timing of the warning — after Plaintiff rebuffed his hug and ceased having sexual relations with him — provides a basis from which a reasonable jury could conclude that, if Plaintiff used her cell phone at work, that fact was not the sole reason for Cordero’s issuing the written warning when he did. … For these reasons, Plaintiff’s NYCHRL retaliation claim survives the summary judgment motion on the merits.

In addition, all defendants (including alleged harasser Cordero) face direct liability under the NYC Human Rights Law, as that statute prohibits retaliation by “any person engaged in any activity to which this chapter applies.” The defendants “face strict, vicarious liability for Cordero’s retaliation under [CHRL] § 8-107(13).”

The court dismissed plaintiff’s aiding and abetting claim under the New York State Human Rights Law: “An aiding and abetting claim against an individual employee depends on employer liability, however, and where no violation of the Human Rights Law by another party has been established, individuals cannot be held liable for aiding and abetting their own violations of the Human Rights Law.”

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