In Diaz v. Champion Parking Corp., No. 151477/2021, 2022 WL 617009 (N.Y. Sup Ct, New York County Mar. 02, 2022), the court, inter alia, denied defendants’ motion to dismiss plaintiff’s claims for “quid pro quo” and hostile work environment sexual harassment under the New York State and City Human Rights Laws.
The court summarized the facts, in part, as follows:
Plaintiff alleges that she was hired by Champion on January 6, 2014 to work in Accounts Receivable, but that she was demoted to being a Receptionist in June 2015 and worked in that role until her wrongful termination on April 23, 2019. Champion hired Defendant Martinez as a Controller in 2016 and he became Plaintiff’s direct supervisor. Plaintiff alleges that soon after his hiring, he began sexually harassing her by inappropriately staring at her, approaching her desk and leaning over her shoulder, standing in the threshold of his doorway staring at her chest for 30 seconds to one minute at a time, and following her to the restroom. [Cleaned up.]
Other allegations include that, among other things: defendants hid plaintiff’s shoes; defendant grew “annoyed” after plaintiff declined his invitation to take her to lunch; defendant asked if she was speaking on the phone with her husband and said “thank goodness, I did not want to get you in trouble” when she said no; plaintiff received a write-up for habitual absences (even though each absence had been approved); defendant questioned whether plaintiff’s grandmother died and requested proof of death upon plaintiff’s request for bereavement leave; and, during a company Christmas party, “surreptitiously” asked the waiter to bring plaintiff an alcoholic beverage instead of the non-alcoholic one she had ordered.
Ultimately, plaintiff alleges that she was informed, upon returning from disability leave, that her position had been eliminated.
In finding that plaintiff stated a claim for “quid pro quo” sexual harassment, the court explained:
The issue in a quid pro quo sexual harassment case brought under the State Human Rights Law is whether one or more employment decisions are linked to unwelcome sexual conduct. Sexual harassment occurs when such unwelcome sexual conduct is the basis, either explicitly or implicitly, for employment decisions affecting compensation or the terms, condition or privileges of employment. The focus is on the prohibited conduct – the unwelcome sexual overtures – and not on the victim’s reaction to it. The pertinent inquiry is whether ‘tangible job benefits’ were expressly or implicitly linked to the acceptance or rejection of the sexual advances.
On the other hand, in interpreting a sexual harassment claim brought under the broader City Human Rights Law, the First Department has dispensed with the need for much of the nomenclature in gender discrimination jurisprudence, such as sexual harassment and quid pro quo, and instead focused on the existence of differential treatment in connection with ‘unwanted gender-based conduct.
Here, taking the allegations in the complaint as true, Plaintiff has set forth causes of action for sexual harassment under both the NYSHRL and NYCHRL. Notably, almost all of the cases cited by defendants are inapposite as they involve summary judgment, not motions to dismiss, an important distinction given that on a motion to dismiss, the facts alleged in the verified complaint are accepted as true.
In finding that plaintiff stated a claim for hostile work environment sexual harassment, the court explained:
A hostile work environment is present when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. Whether a workplace may be viewed as hostile or abusive – from both a reasonable person’s standpoint as well as from the victim’s subjective perspective – can be determined only by considering the totality of the circumstances.
The facts alleged by Plaintiff in the complaint, set forth causes of action for hostile work environment under both the State and City HRL. Defendants erroneously contend that the complained-of incidents are merely petty slights or trivial inconveniences, insufficient to amount to a hostile work environment. However, the plaintiff does not have this burden. Rather, a contention that the behavior was a petty slight or trivial inconvenience constitutes an affirmative defense, which should be raised in the defendants’ answer, and does not lend itself to a pre-answer motion to dismiss. A motion to dismiss merely addresses the adequacy of the pleading, and does not reach the substantive merits of a party’s cause of action. Whether the pleading will later survive a motion for summary judgment, or whether the party will ultimately prevail on the claims, is not relevant on a pre-discovery motion to dismiss.
The court further held that plaintiff sufficiently alleged claims of retaliation under the NYS and NYC Human Rights Laws, namely, that she was subject to an adverse action (wrongful write-up) because she engaged in protected activity (email complaining about the alleged harasser’s conduct and contacting her Union representative and having a meeting).