In Hortas v. Weill Cornell Medical College, No. 162604/2019, 2022 WL 17325643 (N.Y. Sup Ct, New York County Nov. 29, 2022), the court, inter alia, denied defendants’ motion to dismiss plaintiff’s constructive discharge/sexual harassment/hostile work environment claim on timeliness grounds.
From the decision:
A liberal reading of plaintiff’s complaint shows she alleged sexual harassment by Ciecierega which commenced with in two months of the beginning of her employment, in the Spring of 2015, grew more severe continuing through her resignation in 2017. Plaintiff alleges that she reported the harassment not only to her immediate supervisor, but also several other individuals who acted in a managerial or supervisory role, that absolutely no remedial action was taken, and that Ciecierega’s conduct continued unabated.
Defendants argue that the complaint fails to state a claim for constructive discharge. Defendants acknowledge that a hostile-work environment constructive discharge claim must be based on allegations that work conditions are “… so intolerable that a reasonable person would have felt compelled to resign” citing Murphy v. Dep’t of Educ. of City of New York, 155 A.D.3d 637, 640 (2d Dep’t 2017). The court finds the fact herein disguisable from Murphy. In this case, unlike Murphy there were more than just isolated instances of conduct. Plaintiff alleges she was subject to forcible touching of her buttocks on an ongoing basis, that Ciecierega repeatedly rubbed his penis against her buttocks, that she repeatedly had to use force to remove his hands from her body. The court finds these allegations do constitute conditions so intolerable that a reasonable person would feel compelled to resign. Indeed, the harassment was allegedly so open and pervasive that Ciecierega was dubbed plaintiff’s boyfriend by the office staff.
This alleged conduct is remarkably more severe than that in cases relied upon by defendants in their moving papers, such as Zimmer v. Warner Bros. Pictures, 56 Misc. 3d 1208(A) where the alleged conduct consisted of two isolated remarks. It is more akin to the facts in Kimmel v. State, 49 A.D.3d 1210 (2008) where the court held “(a)ccepting the allegations in the complaint as true and according plaintiff the benefit of every favorable inference, as we must in reviewing that part of defendants’ motion pursuant to CPLR 3211 (a) (5), we conclude that the allegations in the complaint do not concern several discrete acts but, rather, they concern a hostile work environment, i.e., ‘a series of separate acts that collectively constitute one ‘unlawful employment practice’. We further conclude that plaintiff has alleged a continuing violation based on the allegations of ‘specific and related instances of discrimination permitted by to continue unremedied for so long as to amount to a discriminatory policy or practice.
Defendants next argue that plaintiff’s constructive discharge was a discrete event to which the continuing violations doctrine does not apply as a matter of law, however, the discharge, even if considered separate from the ongoing harassment that led up to it, is not time barred as it occurred after December 31, 2016.
Based on this, the court denied defendants’ motion to dismiss plaintiff’s claims as time barred.