Opinion
35 Index No. 160658/13 Case No. 2022–00688
04-13-2023
Lori BOND, Plaintiff–Appellant, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Defendant–Respondent.
Schwartz Perry & Heller LLP, New York (Brian Heller of counsel), for appellant. Sylvia O. Hinds–Radix, Corporation Counsel, New York (Lorenzo Di Silvio of counsel), for respondent.
Schwartz Perry & Heller LLP, New York (Brian Heller of counsel), for appellant.
Sylvia O. Hinds–Radix, Corporation Counsel, New York (Lorenzo Di Silvio of counsel), for respondent.
Renwick, A.P.J., Moulton, Shulman, Pitt–Burke, JJ.
Order, Supreme Court, New York County (Laurence L. Love, J.), entered on or about March 3, 2020, which, to the extent appealed from, granted defendant New York City Health and Hospitals’ (HHC) motion for summary judgment dismissing plaintiff's claims for gender discrimination, retaliation, and constructive discharge under the New York City Human Rights Law (City HRL), unanimously modified, on the law, to deny the motion as to the claims for gender discrimination, retaliation, and constructive discharge, and otherwise affirmed, without costs.
The motion court denied HHC's motion for summary judgment dismissing the hostile work environment/sexual harassment claim, and HHC has not appealed from that aspect of the order. Since "[t]he City HRL does not differentiate between sexual harassment and other forms of gender discrimination, but requires that sexual harassment be viewed as one species of sex- or gender-based discrimination" ( Crookendale v. New York City Health & Hosps. Corp., 175 A.D.3d 1132, 1132, 107 N.Y.S.3d 282 [1st Dept. 2019] [internal quotation marks omitted]), it was error to grant summary judgment dismissing plaintiff's gender discrimination claim, while denying the motion with respect to the hostile work environment and sexual harassment claim. Moreover, plaintiff need not show an adverse employment action in order to establish a prima facie case of gender discrimination under the City HRL (see O'Halloran v. Metropolitan Transp. Auth., 154 A.D.3d 83, 91, 60 N.Y.S.3d 128 [1st Dept. 2017] ). On this motion for summary judgment dismissing a claim under the City HRL, defendant bore the burden of showing that, based on the record evidence and drawing all reasonable inferences in plaintiff's favor, no jury could find defendant liable for gender-based discrimination (see Bennett v. Health Mgt. Sys., Inc., 92 A.D.3d 29, 41, 936 N.Y.S.2d 112 [1st Dept. 2011], lv denied 18 N.Y.3d 811, 945 N.Y.S.2d 645, 968 N.E.2d 1001 [2012] ). Here, plaintiff submits sufficient evidence to support her assertions that, after she rejected her supervisor's sexual advances, she was unjustifiably criticized for her work product and attendance by her supervisors and was stripped of her assignments, which permits a finding that she was treated "less well" based on her gender (see Suri v. Grey Global Group, Inc., 164 A.D.3d 108, 114, 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] ).
Defendant's motion also should have been denied with respect to plaintiff's claim for retaliation under the City HRL, as HHC's conduct towards plaintiff following her complaints of discrimination in March 2013 could have a "chilling effect" on future discrimination complaints (see Williams v. New York City Hous. Auth., 61 A.D.3d 62, 71, 872 N.Y.S.2d 27 [1st Dept. 2009], lv denied 13 N.Y.3d 702, 2009 WL 2622097 [2009] ). Plaintiff's affidavit and her emails to HHC's Equal Employment Opportunity officer following her discrimination complaint support a finding that she continued to be excluded from meetings and calls regarding projects she had previously led and that she had work assignments taken from her. While HHC claims that plaintiff requested a reassignment, she presents evidence that she was ultimately transferred to a role with significantly diminished responsibilities within one month of her discrimination complaint (see e.g. Kessler v. Westchester County Dept. of Social Servs., 461 F.3d 199, 209–210 [2d Cir.2006] ).
Plaintiff's constructive discharge claim was also improperly dismissed. When viewed in a light most favorable to her, plaintiff's allegations, including the hostile work environment and reduced work assignments, raise issues of fact as to whether defendant "deliberately created working conditions so intolerable, difficult or unpleasant that a reasonable person would have felt compelled to resign" ( Polidori v. Societe Generale Groupe, 39 A.D.3d 404, 405–406, 835 N.Y.S.2d 80 [1st Dept. 2007] ).