Opinion
12422 Index No. 153152/14 Case No. 2019-3451
12-15-2020
Anthony FRANCO, Plaintiff–Appellant, v. HYATT CORPORATION doing business as Hyatt Times Square, et al., Defendants–Respondents.
The Law Office of Tamara M. Harris, New York (Tamara Harris of counsel), for appellant. Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Judy C. Selmeci of counsel), for respondents.
The Law Office of Tamara M. Harris, New York (Tamara Harris of counsel), for appellant.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Judy C. Selmeci of counsel), for respondents.
Gische, J.P., Mazzarelli, Moulton, Gonza´lez, JJ.
Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered November 15, 2017, which granted defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.
Defendants failed to establish that they were entitled to summary dismissal of plaintiff's quid pro quo sexual harassment and hostile work environment claims under either the State or the City Human Rights Laws. They also failed to show that they were entitled to summary dismissal of plaintiff's claim of retaliation.
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 ( Matter of Father Belle Community Ctr. v. New York State Div. of Human Rights, 221 A.D.2d 44, 50, 642 N.Y.S.2d 739 [4th Dept. 1996], lv denied 89 N.Y.2d 809, 655 N.Y.S.2d 889, 678 N.E.2d 502 [1997] ; see Suri v. Grey Global Group, Inc., 164 A.D.3d 108, 83 N.Y.S.3d 9 [1st Dept. 2018], appeal dismissed, 32 N.Y.3d 1138, 92 N.Y.S.3d 174, 116 N.E.3d 658 [2019] ). An employer can also be held liable for a hostile work environment when it encouraged or acquiesced in the unwelcome sexual conduct by an employee or subsequently condoned the offending behavior ( Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 311, 786 N.Y.S.2d 382, 819 N.E.2d 998 [2004] ; Sukram v. Anjost Corp., 72 A.D.3d 491, 897 N.Y.S.2d 714 [1st Dept. 2010]. Proof of condonation and acquiescence is not necessary where discriminatory conduct is perpetrated by a high-level managerial employee or someone sufficiently elevated in the employer's business organization to be viewed as its proxy ( Randall v. Tod–Nik Audiology, 270 A.D.2d 38, 704 N.Y.S.2d 228 [1st Dept. 2000] ; Father Belle, 221 A.D.3d at 54–55, 642 N.Y.S.2d 739 ). Under the City Human Rights Law, gender discrimination rests on the broader consideration of whether a plaintiff has been treated less well than other employees because of his/her gender ( Suri, 164 A.D.3d at 114, 83 N.Y.S.3d 9 ; Williams v. New York City Hous. Auth., 61 A.D.3d 62, 78, 872 N.Y.S.2d 27 [1st Dept. 2009], lv denied 13 N.Y.3d 702, 2009 WL 2622097 [2009] ). Whether brought under the State or the City Human Rights Law, the claim will not succeed if the offending actions are no more than petty slights or trivial inconveniences ( Ji Sun Jennifer Kim v. Goldberg, Weprin, Finkel, Goldstein, LLP, 120 A.D.3d 18, 28, 987 N.Y.S.2d 338 [1st Dept. 2104] ; Suri, 164 A.D.3d at 114, 83 N.Y.S.3d 9 ; PJI 9:5, 9:5A ) .
See Executive Law § 296(1)(h), which sets forth an affirmative defense for conduct that a reasonable victim would consider petty slights or trivial inconveniences. Because it was passed in 2019, it does not apply to this case, which was commenced before the provision was enacted. Nonetheless, prior to its enactment, the law recognized that petty slights and trivial inconveniences were not actionable.
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The gravamen of defendants' argument in favor of dismissal of the discrimination claims is that the offending actions plaintiff attributes to defendants are no more than petty slights or trivial inconveniences. We disagree. Although defendants deny that any of the acts claimed by plaintiff occurred, or that he made timely complaints about the offending behavior, the court is bound to consider the disputed facts in favor of the non-movant ( Vega v. Restani Const. Corp., 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 [2012] ). Disputed factual issues, especially those that require resolution of credibility issues, are generally unsuitable for summary adjudication ( S.J. Capelin Assoc., v. Globe Mfg. Corp., 34 N.Y.2d 338, 341, 357 N.Y.S.2d 478, 313 N.E.2d 776 [1974] ).
Plaintiff testified that his supervisor, defendant Hall, made repeated sexual advances towards him, including reaching out to touch his face and holding his hand in an elevator while they were alone. She also initiated conversations that made him uncomfortable, telling him she had a "crush" on him, telling him she was single and twice inviting him to her home to repair "a hole" in her apartment. In one conversation, plaintiff claimed Hall said she had a tattoo, adding that "You have to undress me to see it." Plaintiff further testified that after he rebuffed Hall's sexual advances, she repeatedly brought him to the Human Resources manager's office to complain about his work product and that she solicited complaints about him from other coworkers. Plaintiff claims that he complained to HR about Hall's behavior in December. In January he was told that either he could resign or he would be fired. If believed, a trier of fact could find that these actions, especially when considered holistically, were unwelcome sexual conduct. As we have previously recognized, sexual advances are not always explicit, and the absence of a supervisor's direct pressure for sexual favors as a condition of employment does not negate indirect pressure or necessarily doom the claim ( Suri, 164 A.D.3d at 115–16, 83 N.Y.S.3d 9 ).
Defendants argue that plaintiff's separate claim of retaliation should be dismissed because the termination of his employment was for non-discriminatory reasons. Under the State Human Rights Law, a claim for retaliation requires that (1) the employee has engaged in a protected activity, (2) of which the employer was aware, (3) the employee suffered an adverse employment action, and (4) there is a causal connection between the protected activity and the adverse action ( Forrest, 3 N.Y.3d at 312–13, 786 N.Y.S.2d 382, 819 N.E.2d 998 ; see Executive Law § 296[7] ). Under the City Human Rights Law, the retaliatory act complained of need only be "reasonably likely to deter a person from engaging in protected activity" (Administrative Code of the City of N.Y. § 8–107[7] ). The burden then shifts to the defendant to show that it had legitimate, nonretaliatory reasons for its conduct. Where, as here, defendants are the moving party, they have the initial burden to establish prima facie why the claim should be dismissed (see Ji Sun Jennifer Kim, 120 A.D.3d at 22, 987 N.Y.S.2d 338 ; Suri v. Grey Global Group, Inc., 164 A.D.3d at 129–130, 83 N.Y.S.3d 9 ). If the defendant offers legitimate, nonretaliatory reasons for its conduct, then the plaintiff must produce evidence showing that the defendant was motivated, at least in part, by an impermissible motive (see Bantamoi v. St. Barnabas Hosp., 146 A.D.3d 420, 420, 44 N.Y.S.3d 398 [1st Dept. 2017] ; Brightman v. Prison Health Serv., Inc., 108 A.D.3d 739, 740, 970 N.Y.S.2d 789 [2d Dept. 2013] ).
Defendants submitted evidence of complaints about plaintiff's brash demeanor, insensitive comments to coworkers, and poor work ethic, which demonstrate his difficulties following orders and getting along with his peers. By doing so, defendants satisfied their prima facie burden. In opposition, plaintiff relies on Hall's offensive conduct, including her telling him, in sum and substance, that if they could not be together then plaintiff could not work around Hall, and defendants' failure to adequately investigate his claims prior to his termination. Plaintiff's assertions raise disputed issues of fact about whether there was a mixed motive to terminate his employment (see Cadet–Legros v. New York Univ. Hosp. Ctr., 135 A.D.3d 196, 200, 21 N.Y.S.3d 221 [1st Dept. 2015] ; see also Delrio v. City of New York, 91 A.D.3d 900, 902, 938 N.Y.S.2d 149 [2d Dept. 2012] ). Plaintiff's admission, that he was terminated due to an injury is not necessarily inconsistent with a mixed motive for his termination; instead it goes to issues of credibility to be decided by the trier of fact.