In Menghini v. Neurological Surgery, P.C., No. CV 15-3534, 2016 WL 3034482 (E.D.N.Y. May 24, 2016), the court denied defendants’ motion to dismiss plaintiff’s sexual harassment and whistelblower claims, as well as defendants’ motion to strike “redundant, immaterial, impertinent and scandalous” material from plaintiff’s complaint.
The facts, briefly and as summarized by the court (here’s plaintiff’s complaint, if you’re interested):
Plaintiff was employed by Defendants as a physician’s assistant beginning in 2007. She alleges that she witnessed various unsafe procedures and was subjected to repeated sexually offensive comments and behavior by the named individual Defendants over the course of several years that created a hostile work environment to her as a female. Plaintiff alleges that she repeatedly complained, of both the unsafe practices she witnessed, such as one Defendant’s practice of freezing “bone flaps” prior to returning them to the patient’s scalp, and the repeated sexually offensive comments used in the workplace, such as, “If your brains were as big as your breasts, you’d be a genius,” or being asked various times, “When was the last time you had sex?”, or “Fuck me in the ass!” exclaimed in the operating room. She alleges she reported these sexually offensive comments on a number of occasions to her superiors and nothing was done. On November 5, 2014, Plaintiff emailed her supervisor that she continued to be “uncomfortable with the language, and topics of discussion in the OR” and that these comments placed female employees in an inappropriate position. In February 2015, Defendant NSPC was downsizing, and after being reminded of Plaintiff’s email complaining of certain doctor’s behavior, Plaintiff was terminated in March 2015. (Emphasis added.)
As to Applying the law to the facts, the court explained:
Plaintiff alleges Defendants have violated Title VII and the NYSHRL by creating a hostile work environment and retaliating against her when she complained. She claims a gender-based hostile work environment resulted from numerous sexually charged comments made by Defendants in the workplace that were offensive to her as a female. The Second Circuit has noted that sexually charged conduct in the workplace may create a hostile work environment for women notwithstanding the fact that it is also experienced by men. To state a claim for a hostile work environment, a plaintiff must show that the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. Plaintiff’s complaint outlines numerous sexually charged and offensive comments over several years by various employees that continued despite Plaintiff’s complaints that such comments were offensive to her and made her and other female employees uncomfortable. Accepting these allegations as true, the Court finds they sufficiently plead a plausible gender-based hostile environment claim, and denies Defendants’ motion to dismiss this claim.
The court also held that plaintiff sufficiently alleged a violation of the “health care” whistleblower Law, New York Labor Law 741. Specifically, it held that (1) plaintiff’s discrimination and retaliation claims were not waived by NY Labor Law § 740(7), (2) plaintiff was not required to “identify the specific ‘law, rule or regulation’ violated as part of a section 740 claim”, and (3) plaintiff, a physician’s assistant was a “health care provider” protected by § 741.
Finally, the court denied defendants’ motion to strike under FRCP 12(f):
While Plaintiff’s allegations are lengthy and at times salacious, they are alleged as facts that occurred, comments allegedly made by Defendants, and prior lawsuits alleging malpractice. They are relevant to Plaintiff’s hostile work environment claims, and that she suffered retaliation for complaining of the offensive comments and/or unsafe medical practices. When considering a motion to strike, [i]t is not enough that the matter offends the sensibilities of the objecting party if the challenged allegations describe acts or events that are relevant to the action. The Court finds that Plaintiff’s allegations are relevant, and do not result in prejudice to Defendants.