Quid Pro Quo Sexual Harassment Claim Against Club Helsinki Survives Summary Judgment; Inconsistent Reasons For Termination Created Triable Issues of Fact as to Pretext

In Kane v. Club Helsinki, 18-cv-01355, 2021 WL 2457150 (N.D.N.Y. June 16, 2021), the court denied defendants’ motion to dismiss plaintiff’s quid pro quo sexual harassment claim.

In sum, plaintiff, a bartender, alleges that after he rebuffing sexual advances from defendant’s director of operations (Sullivan), his hours were cut and he was terminated.

The court summarized the law of quid pro quo sexual harassment as follows:

To establish a prima facie case of quid pro quo harassment, a plaintiff must present evidence that [he] was subject to unwelcome sexual conduct, and that [his] reaction to that conduct was then used as the basis for decisions affecting the compensation, terms, conditions or privileges of [his] employment. An employee must show a tangible employment action, i.e., that an explicit alteration in the terms or conditions of employment resulted from refusal to submit to a supervisor’s sexual advances. The relevant inquiry in a quid pro quo case is whether the supervisor has linked tangible job benefits to the acceptance or rejection of sexual advances. The requirements to establish a prima facie case are minimal, and a plaintiff’s burden is therefore not onerous. (Citations and internal quotation marks omitted)

As to plaintiff’s prima facie case, the court explained:

Here, Plaintiff has not given a precise date for when Sullivan allegedly propositioned him. He testified during his deposition that it likely occurred in October or November 2016, or “possibly the very last weekend of September.” (Dkt. No. 33-3, at 53-54). Considering the facts in the light most favorable to Plaintiff and assuming Sullivan made the comment in November 2016 at the latest, five months elapsed between Sullivan’s comment and Plaintiff’s termination in April 2017. The Second Circuit has previously held that five months is not too long to find the requisite causal relationship. See Gorman-Bakos, 252 F.3d at 555 (“We are particularly confident that five months is not too long to support [an allegation of a causal connection] where plaintiffs have provided evidence of exercises of free speech and subsequent retaliatory actions occurring” between the time of the protected activity and the adverse action). As in Gorman-Bakos, here there is evidence of another incident during the five-month time period from which a jury could infer causation. The jury may consider, as background evidence, Plaintiff’s testimony that Sullivan reduced his shifts in January 2017, after Plaintiff rejected Sullivan’s proposition, in October or November 2016, “to sleep with his manager to get shifts.” Given the evidence that Plaintiff’s hours were reduced one to two months following his rejection of Sullivan’s alleged proposition for getting more shifts, and construing all of the facts in the light most favorable to Plaintiff, the Court finds that under these circumstances, while the evidence is thin, five months is not too long to infer a causal connection between Sullivan’s alleged sexual proposition and Plaintiff’s termination. See Abrams v. Dep’t of Pub. Safety, 764 F.3d 244, 254 (2d Cir. 2014) (noting that in the retaliation context, temporal proximity of “five months might be enough to establish a prima facie case”); see also Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009) (noting that lack of “bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish [causation] … has allowed our Court to exercise its judgment about the permissible inferences that can be drawn from temporal proximity in the context of particular cases”) (internal quotations omitted). Plaintiff has therefore satisfied his minimal burden establishing a prima facie case of quid pro quo sexual harassment.

Since plaintiff made out a prima facie case, the burden shifted to defendant to articulate a “legitimate, nondiscriminatory reason” for terminating Plaintiff. Defendant met this burden by presenting testimony that they received numerous complaints about plaintiff’s performance from customers and defendant’s employees.

Therefore, the burden shifted back to plaintiff, who is required to “come forward with evidence that the defendant’s proffered, non-discriminatory reason is a mere pretext for actual discrimination.”

Here, plaintiff did so. The court wrote:

Defendant does not address the inconsistency between this rationale for terminating Plaintiff and the rationale given to Plaintiff and the EEOC— a reduction in overall business. A jury may infer pretext from Defendant’s inconsistent reasons for the termination.

In affidavits submitted as part of the EEOC investigation, Schafler and Sullivan both averred that they acted due to reduced staffing needs. … Neither mentioned any performance concerns or complaints, let alone that any complaints contributed to his termination or reduction of hours. Plaintiff’s termination letter similarly listed the reason for the termination as “a work force reduction,” and offered to give Plaintiff a letter of recommendation. Neither Schafler nor Sullivan spoke to Plaintiff about any complaints they may have received other than a single conversation Sullivan allegedly had with Plaintiff about sending servers home early.

In light of the inconsistency between the legitimate, nondiscriminatory reason Defendant now offers, and the prior reasons given for Plaintiff’s termination, there is a triable issue of fact as to whether Defendant’s proffered reason was pretextual. … Given the evidence that Sullivan propositioned Plaintiff by suggesting his shifts would improve if Plaintiff slept with him, the worsening of his employment conditions beginning with the reduction in shifts within months of this proposition and ending a few months later with his termination, Sullivan’s direct involvement in his termination, and Defendant’s inconsistent reasons for his termination, Plaintiff has raised a material issue of fact as to whether Defendant’s decision to fire him was based, at least in part, on quid pro quo sexual harassment. (Citations and internal quotation marks omitted.)

Based on this, the court denied defendant’s motion for summary judgment on plaintiff’s quid pro quo sexual harassment claim.

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