In Jenkins v. NYC Transit Authority, 2017 WL 3207093 (N.Y. Sup. Ct. Index 153761/13 July 28, 2017), the court denied defendants’ motion for summary judgment on plaintiffs’ sexual harassment/hostile work environment claims under the New York City Human Rights Law (NYCHRL).
Plaintiffs, three female bus operators employed by the Manhattan and Bronx Surface Transit Operating Authirity (MABSTOA), allege that they were sexually harassed by dispatcher Earl Bryan, and then subject to retaliation after complaining about it.
Plaintiffs alleged, inter alia, that Bryan subjected them to sexual comments and touching (including, in one instance, licking one plaintiff’s face).
The court explained the law governing plaintiffs’ discrimination claim:
Under the NYCHRL, “[i]t shall be unlawful discriminatory practice: (a) [f]or an employer or an employee or agent thereof, because of the … gender… of any person to discriminate against such person in compensation or in terms, conditions or privileges of employment” (Admin Code § 8-107  [a]). The First Department explained that a defendant’s motion for summary judgment in a sexual harassment case should be denied where there is a triable issue of fact as to whether a plaintiff has been treated less well than other employees because of her gender (Williams v. New York City Hous. Auth., 61 AD3d 62 [1st Dept 2009]. Justice Rolando Acosta wrote in Farrugia v. North Shore Univ Hosp. (13 Misc 3d at 748-749, Sup Ct, NY Co 2006), which was cited by the First Department in Williams, that “liability should be determined by the existence of unequal treatment, and questions of severity and frequency reserved for consideration of damages.”
Applying the law, the court explained:
Here, there can be no dispute that there are triable issues of fact as to defendants’ liability and based upon this record a jury could reasonably conclude that Bryan’s conduct constitutes sexual harassment under the NYCHRL and that plaintiffs were retaliated against based upon their complaints. The court must reject defendants’ arguments because they would have this court make credibility determinations, which is not ordinarily within the scope of a motion for summary judgment motion. Further, defendants’ arguments go to the nature and extent of the sexual harassment and hostile work environment, which as Justice Acosta noted, goes to damages rather than liability. Accordingly, defendants’ motion for summary judgment dismissing plaintiff’s gender discrimination and retaliation claims are denied.