Sexual Harassment Claim May Proceed to Jury; Alleged Harasser’s Denial of Sexual Conduct Presented Fact Issue

In Tirschwell v. TCW Group Inc., No. 150777/2018, 2020 WL 3104364, 2020 N.Y. Slip Op. 31816(U) (N.Y. Sup Ct, New York County June 11, 2020), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s gender discrimination / sexual harassment claim under the New York City Human Rights Law.

From the decision:

[P]laintiff testified about how Ravich arranged “breakfast meetings,” where Ravich would make unwanted sexual demands and tie them into what favors he did or would do for her. Ravich’s alleged favors included, but were not limited to: investing in the Distressed Fund himself, along with getting several other TCW executives and friends to invest, providing marketing and trading support for the fund and securing an extension of time for plaintiff’s automatic termination provision in her Employment Agreement. Complaint, ¶ 53. For example, Ravich stated that he would “personally see to it that Investor A committed to a $25 million investment in the Fund,” implying that if plaintiff rejected his advances, he would withdraw his financial support for the Distressed Fund.

Here, as in Suri v Grey Global Group, Inc., assuming “[t]he absence of evidence of a supervisor’s direct pressure for sexual favors as a condition of employment does not negate indirect pressure or doom the claim.” Id. at 116. Ravich first acted as the liaison who brought plaintiff into TCW and ultimately became plaintiff’s supervisor. Plaintiff claims that Ravich improperly used his dominant position at TCW to impose sexual demands on plaintiff as an implicit condition for supporting the Distressed Fund. Plaintiff further believed that rejecting Ravich’s sexual advances would lead to him withdrawing his support. Therefore, in the present case, viewed in the light most favorable to plaintiff, plaintiff has raised a triable issue of fact that Ravich subjected her to different terms, conditions and privileges of her employment based on gender, and thereby treated her less well than other employees due to her gender. See e.g. Crookendale v New York City Health & Hosps. Corp., 175 AD3d 1132, 1132 (1st Dept 2019) (internal quotation marks and citation omitted) (“In her affidavit in opposition to defendant’s motion, plaintiff sufficiently described being touched and complimented inappropriately to permit a jury reasonably to find that she was treated less well than her male colleagues because of her gender and that the conduct complained of was neither petty nor trivial”).

Plaintiff testified that, after she stopped having sex with Ravich, his attitude towards her and support for the fund changed. According to plaintiff, Ravich stopped intervening on her behalf to obtain the necessary back office support for the Distressed Fund, he limited her trading autonomy and he ultimately put pressure on her to leave. Plaintiff claims that these actions were adverse and that they were causally related to stopping the sexual relationship. Ravich denies these assertions, denies any causal connection and tries to establish that plaintiff suffered no adverse consequences. However, and to reiterate, under the NYCHRL, a plaintiff is not required to establish that she “suffer[ed] a materially adverse employment action in order to succeed in an anti-discrimination action … .” O’Halloran v Metropolitan Transp. Auth., 154 AD3d 83, 91 (1st Dept 2017). The jury must determine from the admissible evidence whether Ravich “linked tangible job benefits to the acceptance or rejection of sexual advances.” Karibian v Columbia University, 14 F3d 773, 778 (2d Cir 1994).

Notwithstanding the evidence put forward by plaintiff, Ravich denies having sex with plaintiff. He further denies plaintiff’s allegations that he groped her breasts and crotch in her office, which, if true, may sustain a hostile work environment claim under the NYCHRL. However, this “denial that he engaged in any of the alleged conduct and the other individual defendants’ denial of any knowledge of such conduct raises genuine credibility issues that the court may not decide on a motion for summary judgment.” McRedmond v Sutton Place Rest. & Bar, Inc., 95 AD3d 671, 672 (1st Dept 2012).

*29 Ravich further argues that, even accepting plaintiff’s allegations as true, the sex was not unwelcome so it would not support a claim for unwanted gender-based conduct. However, “the question of whether particular conduct was unwelcome presents difficult problems of proof and turns largely on credibility determinations committed to the trier of fact.” Alpha Animal Health, P.C., 124 AD3d 852, 854 (2d Dept 2015) (internal quotation marks and citation omitted). Accordingly, the details of the breakfast meetings and whether the plaintiff was subject to unwelcome sexual advances are questions of fact for the jury.

Ravich alternatively argues that there is no evidence that the alleged sexual conduct played a motivating role in his actions. Nonetheless, “the overall context in which [the challenged conduct occurs] cannot be ignored.” Suri v Grey Global Group, Inc., 164 AD3d at 115 (internal quotation marks and citation omitted). According to plaintiff, the unwelcome sexual advances started right after Ravich facilitated the agreement for plaintiff to start at TCW as an independent contractor. They continued throughout the time plaintiff was brought on as an employee. According to the plaintiff, when the sex ended, so did Ravich’s willingness to effectively play the role of her go-to person at TCW.

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