Pregnancy-Related Hostile Work Environment Claims Survive Summary Judgment in Part Against the New York City Department of Education

In Clarke v. New York City Department of Education et al, 2020 WL 6047426 (E.D.N.Y. Oct. 13, 2020), the court, inter alia, granted in part and denied in part defendants’ motion for summary judgment on plaintiff’s gender/pregnancy-based hostile work environment claims.

Specifically, the court granted the motion regarding plaintiff’s claims under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law, but denied it regarding plaintiff’s claim under the New York City Human Rights Law. On this point, this case is instructive as to the relative breadth of the City Law.

As to Title VII and the State Law, the court summarized the “black letter” law:

To make out a hostile work environment claim under Title VII, the plaintiff must present evidence (1) that the conduct in question was “objectively severe or pervasive,” that is, that it created an “environment that a reasonable person would find hostile or abusive”; (2) that the plaintiff subjectively perceived the environment as hostile or abusive; and (3) that the plaintiff was subject to the hostile work environment “because of” her sex. Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007). On the first prong, the “plaintiff need not show that her hostile working environment was both severe and pervasive; only that it was sufficiently severe or sufficiently pervasive, or a sufficient combination of these elements, to have altered her working conditions.”

Applying the law, the court explained:

No single incident alleged here would qualify as sufficiently “severe” to sustain Ms. Clarke’s hostile work environment claim. See, e.g., Sardina v. United Parcel Serv., Inc., 254 F. App’x 108, 110 (2d Cir. 2007) (summary order) (“[A] few off-color comments including references to ‘office bitches’ and ‘Brooklyn bimbettes’ … do not rise to the level of an objectively hostile work environment.”) Rather, Ms. Clarke’s contends that she was subject to a daily barrage of criticism, sometimes for infractions of no significance or which did not occur, along with the directly discriminatory comments and conduct alleged. A plaintiff must clear a high bar in order to assert a hostile work environment claim based on “intense scrutiny” from a supervisor. See Zam-brano-Lamhaouhi, 866 F. Supp. 2d at 174 (denying summary judgment where defendant made plaintiff perform duties outside of her contract; did not excuse her from hallway and cafeteria duty, despite her pregnancy; subjected her to intense scrutiny, including of her bathroom usage, and “yelled” at her for using the bathroom; expressed “disdain” for plaintiff; and prevented her from attending a teacher development course); but see Nugent v. St Lukes–Roosevelt Hosp. Ctr., 303 F. App’x. 943, 945 (2d Cir. 2008) (“derogatory language,” “dismissive comments,” and “intense scrutiny” insufficient to make out hostile work environment claim); Colon v. Fashion Inst of Tech. (State Univ. of New York), 983 F. Supp. 2d 277, 292 (S.D.N.Y. 2013) (intense scrutiny and micro-management on a daily basis insufficient to make out hostile work environment). “Allegations of even constant reprimands and work criticism by themselves are not sufficient to establish a hostile environment claim.” Lucenti v. Potter, 432 F. Supp. 2d 347, 362 (S.D.N.Y. 2006).

Principal Christie’s criticism of Ms. Clarke was at times unrelenting and needlessly personal. However, with a handful of exceptions, Principal Christie confined herself to discussing Ms. Clarke’s job performance. The other comments, such as calling Ms. Clarke fat and imitating her rubbing her belly and waddling, are too sporadic to sustain a hostile work environment claim on their own.

The court reached the opposite conclusion, however, on plaintiff’s claim under the (comparatively broader) City Law:

In contrast to Title VII and the NYSHRL, the NYCHRL does not require conduct to be severe or pervasive in order to sustain a hostile work environment claim at the summary judgment stage and “even a single comment may be actionable in appropriate circumstances.” Gorokhovsky v. New York City Hous. Auth., 552 F. App’x 100, 102 (2d Cir. 2014) (summary order). As such, on an NYCHRL hostile work environment claim, the court must determine only whether “there is a triable issue of fact as to whether the plaintiff has been treated less well than other employees because of” her membership in a protected class. Davis-Bell, 851 F. Supp. 2d at 671. Given Principal Christie’s specific comments about Ms. Clarke’s body and ability to meet her work obligations while pregnant, and given the intensity of the scrutiny applied to her, it would be inappropriate to grant summary judgment under the NYCHRL which is to “be construed liberally for the accomplishment of [its] uniquely broad and remedial purposes.” N.Y.C. Admin. Code § 8–130(a).

The court, as such, denied defendants’ motion for summary judgment on plaintiff’s hostile work environment claim under the New York City Human Rights Law.

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