Sexual Harassment, Age Discrimination, and Retaliation Claims Survive Dismissal; Evidence Included Sex Toy at Work

In Kassapian v. City of New York, 2017 NY Slip Op 07985, 2017 WL 5474008 (N.Y.A.D. 2 Dept. Nov. 15, 2017), the Second Department held that plaintiff sufficiently alleged claims of sexual harassment, age discrimination, and retaliation under the NYC Human Rights Law.

As to plaintiff’s sexual harassment claim, the court explained:

The allegation that a coworker repeatedly demonstrated a sex toy to the plaintiff was sufficient to state a cause of action to recover damages for sexual harassment in violation of the NYCHRL (see Nelson v. HSBC Bank USA, 87 AD3d 995, 999). Further, in opposition to the defendants’ motion, the plaintiff submitted an affirmation of a separate coworker detailing further allegations of sexual harassment directed toward the plaintiff. The court erred in determining that the cause of action must be dismissed because the behavior constituted no more than petty slights or trivial inconveniences. A contention that the behavior was a petty slight or trivial inconvenience constitutes an affirmative defense (see Williams v. New York City Hous. Auth., 61 AD3d 62, 80), which should be raised in the defendants’ answer and does not lend itself to a pre-answer motion to dismiss[.]

As to age discrimination, the court held:

[T]he allegations of disparate treatment of older employees, including the plaintiff, and that the plaintiff’s demotion was based, in part, on age discrimination, sufficiently stated a cause of action to recover damages for age discrimination in violation of the NYCHRL (see Administrative Code of City of N.Y. § 8–107[1][a][3]; Bennett v. Health Mgt. Sys., Inc., 92 AD3d 29, 40; cf. Askin v Department of Educ. of the City of N.Y., 110 AD3d 621, 621–622). The fact that the individual defendants were approximately the same age as the plaintiff does not render the cause of action insufficient[.]

The court also held that plaintiff sufficiently alleged retaliation based on plaintiff’s complaints of sexual harassment:

The Supreme Court also erred in granting dismissal of the cause of action alleging unlawful retaliation based on the plaintiff’s complaints of sexual harassment. Under the NYCHRL, the retaliatory act or acts complained of “must be reasonably likely to deter a person from engaging in protected activity” (Administrative Code of City of N.Y. § 8–107[7]; see Brightman v. Prison Health Serv., Inc., 108 AD3d 739, 739). The allegations that, following the plaintiff’s complaint to a supervisor concerning alleged sexual harassment, the plaintiff was assigned double the normal workload, subjected to increased scrutiny of her work and reprimands for minor errors, and ultimately demoted a few months later, sufficiently stated a cause of action to recover damages for unlawful retaliation for the plaintiff’s complaints of sexual harassment in violation of the NYCHRL[.]

It held, however, that plaintiff failed to state a retaliation claim based on complaints of age discrimination, since “the complaint failed to allege that the plaintiff ever complained about the alleged age discrimination[.]”

Next, the court held that plaintiff’s cause of action alleging violations of the State Constitution was properly dismissed, because plaintiff failed to file a notice of claim.

Finally, the court held that plaintiff should have been permitted to amend their complaint, under CPLR 3025(b), to assert a First Amendment retaliation cause of action under 42 USC § 1983, which did not require plaintiff to file a notice of claim. As to the merits, the court held:

As with unlawful retaliation claims under the NYCHRL, in the First Amendment context, a plaintiff “need only show that the retaliatory conduct in question ‘would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights’ ” (Nixon v. Blumenthal, 409 Fed Appx 391, 392 [2d Cir], quoting Zelnik v. Fashion Inst. of Tech., 464 F3d 217, 225 [2d Cir] ). The allegations that the plaintiff was demoted following the internal complaints, and that she suffered a campaign of harassment following the external complaints, sufficiently pleaded that the subject speech was a substantial or motivating factor for an adverse employment action[.]

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