In Mayo-Coleman v. American Sugars Holding, Inc., 14-cv-0079, 2017 WL 4157379 (S.D.N.Y. Sept. 18, 2017) (J. Crotty), the Southern District of New York (partially) adopted a Magistrate Judge’s Report & Recommendation to deny defendants’ motion for summary judgment on plaintiff’s hostile work environment/sexual harassment claim.
The court summarized the law:
Proof of a hostile work environment claim requires that (1) the harassment was both objectively and subjectively “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment;” and (2) “a specific basis exists for imputing the conduct that created the hostile environment to the employer.” Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997); see Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (explaining that first prong has both objective and subjective components).
“[T]he analysis of severity and pervasiveness looks to the totality of the circumstances.” Kaytor v. Elec. Boat Corp., 609 F.3d 537, 547 (2d Cir. 2010). “[E]specially in the context of a claim of sexual harassment, where state of mind and intent are at issue, the court should not view the record in piecemeal fashion.” Id. at 548 (internal quotation marks omitted). In such cases, “summary judgment should be used sparingly… the question of whether a work environment is sufficiently hostile to violate Title VII is one of fact.” Redd v. N.Y. Div. of Parole, 678 F.3d 166, 178 (2d Cir. 2012) (internal quotation marks and citations omitted) (emphasis in original). Repeated sexual comments and gestures may create a hostile environment. See, e.g., Kaytor, 609 F.3d at 553. “Absent certain defenses … an employer is presumed to be responsible where the perpetrator of the harassment was the plaintiff’s supervisor. [Formatting and paragraphing altered.]
Plaintiff alleged, among other things, that the alleged harasser:
 would call her into his office to yell and scream at her when she didn’t get her work done, even though she was under a lot of stress at work to accurately complete a lot of work in a short amount of time;
 spoke to her with contempt and disrespect;
 made inappropriate comments to her about her butt and boobs, called her an “old coon,” and commented about “what he would do to her if she wasn’t so old;” He “nags her,” but not the guys in her Department;
 complained about her playing her radio low during inventory, but allowed someone else to play loud and inappropriate rap music; and,
 discriminated against her because he wouldn’t assign her overtime work performing Firewatch duties with the Pipefitters.
The Report & Recommendation found that the alleged harasser’s “comments are sufficiently egregious, alone and in the aggregate, to satisfy the first element of a hostile work environment”, that it was not “a defense that the comments were made during a short four-month period within Plaintiff’s 26 years of employment”, and that “disputed facts exist regarding when ASH knew of the alleged sexual harassment, precluding summary judgment.”
Judge Crotty rejected defendants’ objections, noting (e.g.) that it was disputed that the comments were made over a four-month period were disputed, and that regardless, “a rational juror viewing the evidence in the light most favorable to Plaintiff could find the alleged comments, even if made during several months, sufficiently severe.”