Hostile Work Environment Claim Against Moody’s Survives Under City Law, But Not Federal and State Law

In Annelise Osborne, Plaintiff, v. Moody’s Investors Service, Inc. and Nick Levidy in his official and individual capacities, Defendants, 17-cv-01859, 2018 WL 1441392 (S.D.N.Y. March 22, 2018), the court dismissed plaintiff’s hostile work environment claims under federal and state law, but permitted those claims to proceed under the New York City Human Rights Law. The court’s decision illustrates these laws’ differing scope.

From the decision:

A plaintiff bringing a claim for a hostile work environment “must plead facts that would tend to show that the complained of conduct: (1) is objectively severe or pervasive—that is, … creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff’s sex.” Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (internal quotation marks omitted). At the motion to dismiss stage, “a plaintiff need only plead facts sufficient to support the conclusion that she was faced with ‘harassment… of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse.’ ” Id. (quoting Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003)). The incidents referred to in the complaint “[generally] must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.” …

Plaintiff simply refers to stray remarks made by different people in different contexts at different times throughout her career, and her complaint is devoid of the frequency or severity of such occurrences. Cowan v. City of Mount Vernon, No. 14-cv-8871 (KMK), 2017 WL 1169667, at *4 (S.D.N.Y. Mar. 28, 2017). The incidents she refers to are simply episodic, and “not sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” See Batiste v. City Univ. of N.Y., No. 16-cv-3358 (VEC), 2017 WL 2912525, at *9 (S.D.N.Y. July 7, 2017). To the extent that Plaintiff alleges similar conduct to other women, her allegations also suffer from similar defects, namely no details about who made purported comments, the frequency of the comments, or the severity of the comments. Accordingly, Plaintiff’s hostile work environment claims under Title VII and NYSHRL are dismissed.

Under the lower threshold of the NYCHRL, however, Plaintiff does state a plausible hostile work environment claim. A hostile work environment claim under the NYCHRL “does not require either materially adverse employment actions or severe and pervasive conduct” in order to state a claim. Lenart v. Coach Inc., 131 F. Supp. 3d 61, 69 (S.D.N.Y. 2015) (quoting Mihalik, 715 F.3d at 114). Plaintiff merely has to show unequal treatment based upon sex. Mihalik, 715 F.3d at 114. Plaintiff has alleged widespread institutionalized discrimination against herself and other women and thus “evidence of unwanted gender-based conduct.” Lenart, 131 F. Supp. 3d at 69 (internal quotation marks omitted). This is sufficient to state a hostile work environment claim under the NYCHRL.

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