Sexual Harassment/Hostile Work Environment Claim Survives Summary Judgment; Evidence Included Name-Calling, Pornography

In Green v. New York City Transit Authority et al, 15-cv-8204, 2020 WL 5632743 (S.D.N.Y. Sept. 21, 2020), the court, inter alia, denied defendants’ motion for summary judgment on plaintiff’s sexual harassment/hostile work environment claim.

Federal & State Law

As to plaintiff’s claims under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law, the court explained (after summarizing the relevant law):

Considering only Plaintiff’s exhausted claims, a reasonable jury could conclude that her workplace was permeated with discriminatory intimidation and harassment severe enough to create an abusive working environment. Indeed, Plaintiff alleges that she was subject to a litany of harassment, including physical intimidation by bucking of her kneecaps; at least fourteen pornographic text messages; and name-calling from co-workers after they discovered her relationship with her supervisor. Most strikingly, Plaintiff had an axe swung at her head repeatedly. See Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (“[I]t is well settled in this Circuit that even a single act can meet the threshold if, by itself, it can and does work a transformation of the plaintiff’s workplace.”). A reasonable fact-finder could conclude that this incident was motivated by discrimination based on Plaintiff’s gender because it occurred after a co-worker found out about Plaintiff’s affair with Larrier and because Larrier—who had been sexually harassing Plaintiff for months at the time of the incident—was present and said “it’s only a matter of time.” See Alfano v. Costello, 294 F.3d 365, 378 (2d Cir. 2002) (“Facially neutral incidents may be included … among the ‘totality of the circumstances’ that courts consider in any hostile work environment claim, so long as a reasonable fact-finder could conclude that they were, in fact, based on sex.”). Plaintiff alleges a pattern of harassment based on her gender that was severe, frequent, and at times physically threatening. Accordingly, a reasonable jury could return a verdict Plaintiff’s favor on her hostile work environment claim and Defendants’ motion for summary judgment is denied.

The court also noted, in a footnote, that “at a minimum there are factual disputes about the timing and details of some of the alleged harassment against Plaintiff, and consequently whether the Court can consider those incidents for purposes of Plaintiff’s hostile work environment claim,” citing the proposition that “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.”

However, while the court held that plaintiff presented enough evidence as to the merits of her hostiel work environment claim, it nevertheless held that plaintiff’s claims against the New York City Transit Authority were barred by the Faragher/Ellerth defense, based on its finding that plaintiff “unreasonably failed to use the Transit Authority’s complaint procedure.”

City Law

Turning to plaintiff’s claim under the New York City Human Rights Law, the court concluded that plaintiff met the (lower) standard for liability under that statute – “the existence of unwanted gender-based conduct” – based on her “allegations of physical intimidation, unwanted pornographic text messages, name-calling, propositions for sex, and an axe swung at her head.”

Plaintiff’s claim under the NYC Human Rights Law survive against the NYC Transit Authority, since the Faragher/Ellerth defense does not apply under that statute. Under N.Y.C. Administrative Code § 8-107(13)(b)(1), the TA was strictly liable where, as here, plaintiff’s claims were based on the acts of persons who “exercised managerial or supervisory responsibility.”

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