Retaliation Claim, Based on Termination Following Complaint of Sexual Harassment/Groping, Survives Summary Judgment Dismissal

In Harding v. Donatella GCT LLC et al, No. 158886/2017, 2021 N.Y. Slip Op. 50116(U), 2021 WL 647542 (Sup Ct, Feb. 18, 2021), the court, inter alia, denied defendant’s motion for summary judgment targeting plaintiff’s claim of retaliation.

From the decision:

To make out a claim for retaliation, a plaintiff must show that (1) she engaged in a protected activity, (2) her employer was aware that she participated in this activity, (3) she suffered an adverse employment action based upon her activity, and (4) a causal connection exists between the protected activity and the adverse action. (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 312—313 [2004].)

*3 Plaintiff has introduced evidence, principally in the form of her affidavit (see NYSCEF No. 104), that satisfies each of these criteria. Plaintiff’s affidavit represents that she was sexually harassed repeatedly by Murdock, culminating in an incident in which he groped her; that plaintiff reported the groping incident to her supervisor, Rudemyer; and that Rudemyer fired her the next day. (See Ramos v Metro North Commuter R.R., 190 AD3d 570, 571 [1st Dept 2021] [holding that plaintiff raised an issue of fact about the existence of a causal connection by providing evidence that her protected activity and her termination occurred within weeks of each other].)

Defendant contests plaintiff’s contentions that Murdock sexually assaulted her (see NYSCEF No. 98 [Murdock affidavit] ) and that plaintiff reported that assault to Rudemyer (see NYSCEF No. 92 at ¶ 17 [Rudemyer affidavit] ). This dispute, though, merely raises an issue of credibility requiring resolution by a jury.

Defendant also contends that Rudemyer fired plaintiff because she was consistently tardy or absent to work, not because she complained to him about Murdock groping her. (See NYSCEF No. 92 at 1-4.) Plaintiff’s affidavit, though, disputes the extent of her tardiness, suggests that other employees were equally tardy without being fired, and states that Rudemyer gave her a nontardiness-based reason for having fired her. (See NYSCEF No. 104 at ¶¶ 10-14.) These contentions, coupled with the tight temporal proximity between plaintiff’s claimed reporting of the groping incident and her termination, suffices to raise a factual dispute about whether retaliation was at least one motivating factor in Rudemyer’s decision to fire plaintiff, rendering summary judgment inappropriate.

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