In Rice v. Smithtown Volkswagen, 2018 WL 3848923 (E.D.N.Y. Aug. 13, 2018), the court held that plaintiff sufficiently pleaded claims for “quid pro quo” sexual harassment, hostile work environment sexual harassment, and retaliation under Title VII of the Civil Rights Act of 1964. (In this post I will discuss the court’s assessment of plaintiff’s “quid pro quo” sexual harassment claim.)
In sum, plaintiff alleged that he endured sexual harassment – including by receiving sexually explicit photographs and sexual solicitations from defendant’s owner – and then terminated after he turned down these advances.
As for his claim of quid pro quo sexual harassment, the court explained:
Quid pro quo sexual harassment refers to situations in which ‘submission to or rejection of unwelcome sexual conduct by an individual is used as the basis for employment decisions affecting such individual.’ ” Perks, 251 F.Supp.2d at 1154 (quoting Karibian v. Columbia University, 14 F.3d 773, 777–78 (2d Cir. 1994) ). To make out a prima facie case for such a claim against an employer, “an employee must show a tangible employment action, i.e., that an explicit alteration in the terms or conditions of employment resulted from refusal to submit to a supervisor’s sexual advances.” Rivera v. New York City Dep’t of Correction, 951 F.Supp.2d 391, 400 (E.D.N.Y. 2013) (citing Schiano v. Quality Payroll Systems, Inc., 445 F.3d 597, 603 (2d Cir. 2006) ). A tangible employment action usually “constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Schiano, 445 F.3d at 604 (quotations omitted). Employers are strictly liable for quid pro quo harassment committed by supervisors.
Turning to the facts of this case, the court noted the following:
The Complaint alleges that after months of unsuccessful sexual advances Bindels started tying his efforts towards the Plaintiff to promises of job security. Specifically, the Plaintiff claims that “on or about June 15, 2016, Bindels told plaintiff that his job at SV would be secure in the future if he would have sex with him” and then again “[o]n August 24, 2016, Bindels told plaintiff that he would make money at SV and have a secure future at SV if he had sex with him.” Compl. ¶¶ 35, 38. The Complaint states that the Plaintiff not only rejected Bindels’s offers in both instances, but also that he reported Bindels’ conduct to another superior, Hovell, the general manager. Id. ¶¶ 36, 39, 41. Shortly thereafter, Bindels directed Hovell to fire the Plaintiff, who, upon firing him, told the Plaintiff that the reason for his termination was that Bindels no longer wanted him at Smithtown Volkswagen.
Analogizing this case to Walker v. AMR Servs. Corp., 971 F.Supp. 110 (E.D.N.Y. 1997) – in which plaintiff alleged that she was subject to advances and harassing comments and terminated two months after rejecting the advances and complaining of them – the court determined that “Plaintiff states a plausible theory that the Defendants fired him as a backlash for failing to succumb to Bindels’s overtures.”
The court also rejected defendants’ argument based on the sequence of events leading up to plaintiff’s termination – namely, that Bindels sent the lewd pictures to the Plaintiff in February, but did not fire the Plaintiff until September, and therefore, the harassment could not have been the cause of the adverse employment action – noting that “this characterization misstates the allegations in the Complaint.”
While the first advance may have happened in February, several intermediate incidents allegedly occurred between when Bindels sent the pictures and the Plaintiff’s termination. In addition, the Complaint states that as time progressed the advances became more serious and were tied to promises of job security. Considering that the last overture by Bindels occurred merely eight days before the Plaintiff’s firing, it is plausible that – taking the allegations in the Complaint as true and drawing all reasonable inferences in favor of the Plaintiff – the Plaintiff’s refusal to relent in his opposition to Bindels’s sexual advances drove the decision underlying his termination. .