Constructive Discharge Claim Survives Dismissal; Sexual Harassment and Other Claims Dismissed as Time-Barred

In Chow-Tai v Fulvio & Associates, LLP, No. 158939/2018, 2019 WL 4039146, 2019 N.Y. Slip Op. 32514(U) (N.Y. Sup Ct, New York County Aug. 27, 2019), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s constructive discharge claim.

From the decision:

To establish a constructive discharge, Plaintiff must demonstrate “deliberate and intentional” acts of the employer created an “intolerable workplace condition” which would compel a “reasonable person to leave” their employment (Morris v Schroder Capital Mgmt. Int’l, 7 NY3d 616, 622 [2006]; see also Polidori v Societe Generale Groupe, 39 AD3d 404 [1st Dept 2007]). In the present case, Fulvio, the principal of Fulvio, LLC, is alleged to be the perpetrator of multiple purposeful, harassing gender based discriminatory acts towards Plaintiff both through physical contact and oral statements. Plaintiff also alleges several instances when Fulvio threatened to terminate Plaintiff’s employment and, in one instance alleged in Plaintiff’s affidavit in opposition, Fulvio derided Plaintiff in the presence of another employee. These acts are alleged to have caused both psychological and physical distress, including affecting Plaintiff both during and after her pregnancy, and compelled her to resign. Contrary to Defendant’s **4 assertions, these allegations, viewed most favorably, sufficiently state a claim of constructive discharge for pleading purposes

The court did, however, dismiss plaintiff’s sex/gender discrimination (including hostile work environment and sexual harassment) claims, finding that those claims were time-barred under the applicable statute of limitations, and that the “continuing violation” doctrine did not apply.

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