In Garcia v. The Comprehensive Center, LLC et al, 17-CV-8970, 2018 WL 3918180 (S.D.N.Y. Aug.16, 2018), the court, inter alia, granted plaintiff’s motion for default judgment on her race and gender discrimination (constructive discharge) claims.
Plaintiff’s allegations are, to say the least, shocking:
For the last two years of her employment, Garcia suffered increasingly abusive treatment from Defendant Sklar. (Id. at ¶18.) During a meeting in February 2015, in responding to a comment by Garcia, Sklar referred to her “Spanish, low class mentality.” (Id. at ¶17.) In September, he called Garcia a “spic” and a “parasite.” (Id. at ¶ 21.) In April 2016, Sklar slammed Garcia’s laptop closed on her fingers, punched her in the face, and dragged her into his office by the collar of her shirt. (Id. at ¶ 22.)
Garcia also experienced differential treatment relating to her pay. For example, in December 2016, Garcia began to receive her paycheck two weeks late. (Id. at ¶ 25.) The rest of her coworkers continued to receive timely payments. Meanwhile, Sklar told Garcia, “I am paying you too much, you are not worth what I am paying you, especially at your age. No company is going to pay you what you’re making here. I could get someone for less who is younger.” (Id. at ¶ 26.) He also told her, “[Y]ou’re incompetent,” and “[Y]ou’re bad for my company.” (Id.)
On January 11, 2017, Sklar again told Garcia that she was “not worth what I’m paying you, especially at your age. I could get an office manager for less who is younger,” adding that she would not have a job by January 13, 2017. (Id. at ¶ 27.) Garcia suffered a severe panic attack on January 26, 2017. (Id. at ¶ 29.) Nonetheless, Garcia continued to work for Defendants. (Id. at ¶ 28.) In February 2017, Sklar said to Garcia: “I feel like punching you in the face”; “I’m leaving before I kill you”; and “I am not going to lose money because of a fucking Dominican bitch.” (Id. at ¶¶ 30–31, 33.) After the last comment, Sklar demanded that Garcia come into his office and then blocked the door when she attempted to leave. (Id. at ¶ 33.) Throughout her employment, Sklar also repeatedly told Garcia: “I am not paying you to play with yourself”; “I am not paying you to jerk off”; “you would be treated very well if I got a blow job every morning”; and “you’re a disgusting bitch.”
The court had little difficulty finding that these facts were sufficient to make out claims under federal, state, and local law:
Here, Garcia alleges (1) membership in a protected class (Latina) (Compl. ¶ 102) and (2) that she was qualified for her position. (Compl. ¶ 15–16.) As to the third element, Plaintiff relies on a constructive discharge theory of adverse employment action. (Compl. at ¶ 36.) “A constructive discharge occurs when an employer ‘intentionally create[s] an intolerable work atmosphere that force[s the plaintiff] to quit involuntarily.’ ” Dall v. St. Catherine of Siena Med. Ctr., 966 F. Supp. 2d 167, 177 (E.D.N.Y. 2013) (quoting Andersen v. Rochester City Sch. Dist., 481 F. App’x. 628, 632 (2d Cir.2012)). Whether a work environment is intolerable is assessed objectively from the perspective of a reasonable employee. See id. The Court concludes that Sklar’s alleged physical abuse, including his punching Garcia in the face with a closed fist, satisfies the test for constructive discharge. (Compl. at ¶ 22.) Fourth, and finally, Plaintiff has adequately alleged circumstances giving rise to an inference of discrimination: Sklar’s alleged racial slurs are sufficient to satisfy this element. See, e.g., Poliard v. Saintilus Day Care Ctr., Inc., No. 11 Civ. 5174, 2013 WL 1346238, at *3 (E.D.N.Y. Mar. 7, 2013), report and recommendation adopted, No. 11 Civ. 5174, 2013 WL 1346398 (E.D.N.Y. Apr. 2, 2013) (inferring discriminatory motive based on “plaintiff’s allegations regarding her supervisor’s negative comments about Haitian employees”).
Because Garcia has established liability on her federal and state race discrimination claims, she has satisfied the more liberal NYCHRL standard a fortiori. See Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013). In addition, because Defendant Sklar allegedly exercised supervisory responsibility over Garcia (Compl. at ¶ 13), she is entitled to judgment on her claim for supervisory liability under § 8-107(13)(b) of the NYCHRL. See N.Y.C. Admin. Code § 8–107(13)(b); Erasmus v. Deutsche Bank Americas Holding Corp., No. 15 Civ. 1398, 2015 WL 7736554, at *8 (S.D.N.Y. Nov. 30, 2015).
For the same reasons, Garcia has adequately alleged discrimination on the basis of gender. Defendant Sklar’s slurs were not only race-based, but also demonstrated gender-based hostility: for example, he said, “I am not paying you to jerk off”; “You’re a disgusting bitch”; and “You would be treated very well if I got a blow job every morning.”
The court held, however, that plaintiff did not establish liability on her age discrimination claim under the Age Discrimination in Employment Act (ADEA), noting that plaintiff’s complaint was devoid of allegations as to plaintiff’s age.