Hostile Work Environment Sexual Harassment Claim Against Mendes & Mount Survives Dismissal

In Pesce v. Mendes & Mount, LLP et al, 2020 WL 7028641 (S.D.N.Y. Nov. 30, 2020), the court, inter alia, denied defendants’ motion to dismiss plaintiff’s hostile work environment sexual harassment claim.

From the decision:

Assessing the totality of the circumstances, and noting that the Second Circuit has “repeatedly cautioned against setting the bar too high” for “establishing a hostile work environment,” Terry, 336 F.3d at 148, the Court concludes that dismissal of Pesce’s Title VII claim is unwarranted. Hicks broke into Pesce’s Mendes-provided apartment twice in 1989, nonconsensually grabbed and attempted to kiss Pesce in the Mendes office in 2015, and attempted to locate Pesce while unsupervised in the Mendes office in March 2017. See Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995) (“[E]ven a single incident of sexual assault sufficiently alters the conditions of the victim’s employment and clearly creates an abusive work environment for purposes of Title VII liability.”), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). The Firm Defendants took no meaningful steps to prevent Hicks from interacting with Pesce in the Mendes office. They continued to host Hicks in the office, unsupervised and without advance notice to Pesce. Although the Firm Defendants promulgated a security protocol regarding Hicks, they failed to implement it. Moreover, the Firm Defendants made clear that Pesce’s efforts to protect herself from Hicks — by working from home if he might be in the office — would be viewed as Pesce’s failure to put the client first and would result in her loss of personal benefit days.
*5 Altogether, Pesce plausibly alleges that the Firm Defendants required her to risk being sexually harassed, and potentially assaulted, in the office or lose benefits. A reasonable employee would find that this choice altered the conditions of her employment for the worse, thus satisfying the “objectively severe or pervasive” element of Pesce’s hostile work environment claim. See Patane, 508 F.3d at 113–14.

As such, the court denied defendants’ motion to dismiss plaintiff’s hostile work environment claim.

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