Sexual Harassment, Hostile Work Environment, Retaliation, and Unpaid Wage Claims Established Against Latino Express Restaurants

In Santana v. Latino Express Restaurants, Inc., No. 15CV4934-LTS, 2016 WL 4059250 (S.D.N.Y. July 28, 2016), the court found that plaintiff established her sexual harassment, unpaid wage, and retaliation claims following defendants’ default.

The facts:

Approximately one or two weeks after Santana started working at the Restaurant, [defendant Tommy] Pimental [the restaurant’s co-owner and manager and plaintiff’s supervisor] began criticizing Santana’s appearance and clothing on a regular basis. (Id. ¶¶ 32-33.) Although the Restaurant had no dress policy and Santana dressed similarly to her co-workers, Pimental repeatedly told her to dress “sexier” and to wear tighter clothes. (Id. ¶¶ 33-34.) Pimental made derisive remarks like “is that your mom’s shirt?” or “are those your mom’s pants?” on a near-daily basis, and he regularly told Santana that she looked like she was “coming from church.” (Id. ¶¶ 34-35.) Pimental also offered to buy Santana “tighter jeans” and a belt to make her jeans “fit tighter.” (Id. ¶ 34.)
In or around the week of April 19, 2015, Pimental asked Santana if she “brought an application” to apply to be his “girlfriend.” (Id. ¶ 36.) He repeatedly told her that he could do things for her that younger men could not because he was “older.” (Id. ¶ 38.) On one occasion, Pimental stated that he “like[s] younger girls” and that he used to have a fifteen-year-old girlfriend. (Compl. ¶ 40.) He also repeatedly asked her if she had a boyfriend, even though Santana responded each time that she was not interested in dating him. (Id. ¶ 39-40.)
In or around the end of April 2015, Santana complained to the Restaurant’s other co-owner, who was Pimental’s wife, about Pimental’s treatment of Santana. (Id. ¶ 41.) Almost immediately thereafter, Pimental began singling Santana out and reprimanding her for things he had not taken issue with previously. (Id. ¶¶ 42-43.) He glared at her during work, and on one occasion screamed at her in front of others, even though he had never yelled at a server before. (Id. ¶¶ 45-46.) Pimental also started assigning Santana a disproportionate number of less desirable tasks like cleaning the back areas and bathrooms of the Restaurant; such tasks had been assigned equitably prior to Santana’s complaint. (Id. ¶ 44.) Santana quit on or about May 10, 2015. (Id. ¶ 47.) Santana claims to feel humiliated, degraded, victimized, embarrassed, and emotionally distressed as a result of Pimental’s actions.

Applying the law to the facts, the court concluded:

Plaintiff’s uncontradicted factual allegations are sufficient to establish that Pimental discriminated against her and subjected her to a hostile work environment on the basis of her gender. As a woman, Plaintiff belonged to a protected group. Plaintiff reasonably believed that Pimental’s constant criticism of Plaintiff’s clothes and romantic advances constituted sexual harassment. Pimental singled out Plaintiff on the basis of her gender by directing her to dress “sexier” and wear tighter clothing on a near-daily basis, even though other servers dressed in a similar way and there was no dress policy. Pimental repeatedly made unwelcome remarks to Plaintiff about Plaintiff being his girlfriend, even after Plaintiff told him she was not interested. Taken together, Pimental’s conduct amounted to more than just petty slights and trivial inconveniences, and created a hostile work environment for Plaintiff. Pimental knew or should have known that his behavior was unlawful and, when Plaintiff informed Pimental’s wife, the Restaurant’s other co-owner, of Pimental’s behavior, neither the Restaurant nor the other owner took remedial action. Thus, because Plaintiff has established a prima facie case of a hostile work environment and Pimental has failed to proffer a legitimate, independent, and nondiscriminatory reason for his actions, Plaintiff has proven her discrimination claim.

As to plaintiff’s retaliation claim, the court explained:

The fact that Pimental’s significant change in behavior toward Plaintiff occurred almost immediately after her complaint to his wife supports the existence of a causal link between her engaging in a protected activity and the alleged adverse employment actions that she suffered. The temporal proximity – a mere two weeks – between Plaintiff’s complaint and her constructive discharge also permits an inference of a causal connection.

Share This: