Hostile Work Environment Sexual Harassment Claim, Against NYS Office of Information Technology Services, Survives Summary Judgment

In Erno v. New York State Office of Information Technology Services, No. 1:19-CV-1457, 2022 WL 1224325 (N.D.N.Y. April 26, 2022), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s hostile work environment sexual harassment claim under Title VII of the Civil Rights Act of 1964 (but not under the New York State Human Rights Law).

This decision illustrates the differing standards, as between federal law (Title VII) and the more restrictive NYSHRL, for imputing allegedly unlawful harassment to the employer.

First, the court assessed the issue of whether plaintiff sufficiently alleged hostile conduct related to plaintiff’s gender. The court explained:

Here, Plaintiff argues that “all of the examples of harassment” should be considered as part of her hostile work environment claim. (Dkt. No. 47-21, pp. 8–9). Most of the examples occurred before July 4, 2017, including Lubin’s alleged comments and stories about breasts and “breasting.” But Plaintiff also cites examples that occurred thereafter, including comments Lubin made to others accusing Plaintiff of being a liar. For example, Traci Scalzo testified that on March 15, 2018, Lubin told her that he had been vindicated and that Plaintiff’s allegations were lies.2 (Dkt. No. 47-13, p. 7). Plaintiff felt that these comments “re-victimized” her, effectively re-opening the wound of the original sexual harassment. (Dkt. No. 47-1, p. 31). Viewing the facts in the light most favorable to Plaintiff, the Court finds that Lubin’s later comments could be seen as part of a continuing pattern of harassment based on gender. Therefore, the Court will review the totality of the circumstances, including incidents from both before and after July 4, 2017, in assessing Plaintiff’s hostile work environment claim.

Plaintiff has adduced evidence of harassment including: 1) Lubin repeatedly telling the “breasting” story to her or in her presence; 2) Lubin repeatedly commenting on his wife’s breasts in Plaintiff’s presence; 3) one instance where Lubin discussed oral sex in Plaintiff’s presence; 4) a period when Lubin directed a web camera at Plaintiff’s workstation; and 5) Lubin repeatedly making comments outside Plaintiff’s presence that referred to her sex discrimination complaint and cast her as a liar, which caused her to be shunned by other employees.3 Viewing the facts in the light most favorable to Plaintiff, all of these incidents could be seen as motivated by Plaintiff’s gender.4 There is no dispute that Plaintiff subjectively perceived this work environment to be abusive. Indeed, she stated that the harassment left her “disgusted, angry, and frustrated.” (Dkt. No. 47-1, p. 4). And the Court finds that Plaintiff has raised an issue of fact as to whether the harassment was severe and/or pervasive enough that a reasonable person would find it to be hostile or abusive. See Redd v. New York Div. of Parole, 678 F.3d 166, 182 (2d Cir. 2012) (finding that questions of fact existed as to supervisor’s conduct and motivation and the effect of the conduct on a reasonable person in the plaintiff’s position, which would have to be resolved by a jury for purposes of the plaintiff’s hostile work environment claim); Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 75 (2d Cir. 2001) (recognizing that the line between “boorish and inappropriate” behavior and actionable sexual harassment can be indistinct, and such “haziness counsels against summary judgment”).

Next, the court turned to the issue of whether the alleged hostile work environment may be imputed to the defendant.

As to that issue, the court explained:

The record shows that Plaintiff first formally complained to ITS about Lubin on February 27, 2017. (Dkt. No. 44-2, pp. 47–51). And while ITS quickly opened an investigation and began interviews, Lubin remained Plaintiff’s supervisor, even though Plaintiff requested to be transferred out of the unit. (Id., p. 54). On or about April 7, 2017, ITS concluded its investigation and removed Lubin from Plaintiff’s workplace and chain of command. (Dkt. No. 44-8, ¶¶ 28–32). But in the interim, Plaintiff states that Lubin had started pointing a web camera at her desk. (Dkt. No. 47-1, p. 6). Further, the record shows that ITS agreed to a settlement with Lubin regarding Plaintiff’s complaint, without any admission of guilt or finding of wrongdoing. (Dkt. No. 44-2, pp. 124–27). Although Lubin was required to forfeit 10 days of accrued time, Plaintiff argues that the settlement could be seen as a “slap on the wrist” that failed to deter future harassment. (Dkt. No. 47-21, p. 24). And Plaintiff has adduced evidence that Lubin continued to disparage her to other employees, claiming that he had been vindicated and calling her a liar. (Dkt. No. 47-13, p. 7).

Applying the law, as to Title VII, the court held that “a reasonable jury could conclude that ITS failed to promptly and effectively respond to Plaintiff’s complaints to prevent continuing harassment and remediate the hostile work environment” and that, therefore, defendant was not entitled to summary judgment on plaintiff’s Title VII hostile work environment claim.

However, according to the court, plaintiff “has not cleared the higher bar for potentially imputing liability to ITS under the NYSHRL because there is no evidence that ITS encouraged or approved of Lubin’s conduct;” it continued that while “the efficacy of its response is open to debate, the record shows that ITS at least attempted to address Lubin’s conduct and remedy the hostile work environment” and, therefore, plaintiff’s NYSHRL hostile work environment claim must be dismissed.

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