Plaintiff Sufficiently Alleged Hostile Work Environment, Gender Discrimination, and Constructive Discharge Claims Against Law Firm

In Pryor v. Jaffe & Asher, the Southern District of New York held that plaintiff adequately stated claims for hostile work environment, gender discrimination, and constructive discharge.

Here are the facts, taken from plaintiff’s complaint:

Defendant Jaffe & Asher is a law firm doing business in New York, New York. Defendant Jeffrey Tseng, an employee of Jaffe & Asher, served as a director of information technology. Plaintiff Katherine Pryor (“Plaintiff”) began working for Jaffe & Asher, reporting to Defendant Tseng, in November 2012.

According to Plaintiff, on June 3, 2013, Defendant Tseng invited her to join him at a bar after work. Shortly before receiving this invitation, Plaintiff had been the victim of an episode of domestic violence of which she had informed her superiors, including Defendant Tseng, and she was still suffering the physical and emotional effects of that episode.

After the two arrived at the bar, Defendant Tseng began asking Plaintiff about her plans for her career. At the beginning of the conversation, Defendant Tseng also stroked Plaintiff’s hand in what is alleged to be a sexually suggestive fashion. Uncomfortable, Plaintiff rose to leave shortly thereafter. Defendant Tseng grabbed Plaintiff, trying to embrace her, and attempted to kiss her on the neck. Plaintiff tried to pull away from him; Defendant Tseng “forcibly” pulled her back and succeeded in kissing her on the neck. Plaintiff then broke free and departed. Plaintiff suffered extreme emotional distress as a result of this incident, and her psychologist has advised her that returning to her employment would have adverse health consequences.

Plaintiff asserted various claims including those under the Fair Labor Standards Act, the New York Minimum Wage Act, and the New York State and City Human Rights Laws. Defendants moved to dismiss plaintiff’s allegations of gender and domestic-violence victim discrimination.

First, the court held – after reviewing the “muddled” case law on this issue – that plaintiff stated a claim for hostile work environment under the New York State Human Rights Law:

There can be no disagreement that, if true, the event Plaintiff describes is disgusting and unacceptable. Whether the objective character of Plaintiff’s allegations rise to the level of extraordinary severity, however, is a close and difficult question. Nonetheless, the Court cannot conclude that, taken as true, they are so inadequate as to warrant dismissal. Though these allegations may not ultimately lead to liability, they are not deficient as a matter of law; assessment of such intermediate allegations is best left to a jury. …

The allegations here are not so clearly outrageous as to spell certain liability for Defendants. … Nor are they so fundamentally insignificant as to make dismissal a foregone conclusion. … Their objective severity is ambiguous. And evaluation of ambiguous acts is a task for the jury, not for the Court. …

The Court cannot conclude, as a matter of law, that an incident of this intermediate albeit revolting character is without question insufficiently severe to state a claim for hostile work environment. The fact that the law requires harassment to be severe or pervasive before it can be actionable does not mean that employers are free from liability in all but the most egregious of cases. … This is not the most egregious of cases; it also is not a circumstance in which Defendants are obviously free from potential liability.

Second, the court held that plaintiff stated a claim for hostile work environment under the New York City Human Rights Law:

The NYCHRL is expressly “more protective” than the NYSHRL. … Employers may only avoid liability under the NYCHRL for conduct that results in an employee being treated “less well” because of her gender …, when the conduct complained of constitutes nothing more than “petty slights and trivial inconveniences.” … Because Plaintiff has adequately pled a claim under the NYSHRL, she has also done so under the NYCHRL.

The court rejected defendants’ argument that plaintiff merely alleged a non-actionable “petty slight or trivial inconvenience”, citing the “repellent nature” of her allegations, and noting that a claim that is viable under the NYSHRL is necessarily viable under the NYCHRL. 

It also rejected defendants’ argument that plaintiff failed to adequately allege that she was discriminated against because of her gender or her domestic violence victim status.

Initially, defendants waived this argument by raising it for the first time on appeal. However, even assuming it was not waived, this argument failed on the merits because plaintiff “expressly alleged that the treatment giving rise to her suit was motivated by her protected status.” In addition, “the facts alleged throughout the Complaint easily permit the Court to infer … that the conduct of which Plaintiff complains was based on prohibited factors.” Specifically:

First, the allegations in the Complaint support the inference that Defendants’ conduct was motivated by Plaintiff’s gender. It is certainly the case that not all humans are sexually attracted to persons of the opposite gender, but many are. Here, a male supervisor asked a female employee out to a bar, stroked her hand in a sexual manner, and twice attempted (and once succeeded) to kiss her on the neck. Any reasonable observer, if asked what motivated this encounter, would almost certainly answer that the male supervisor’s actions were prompted by the female employee’s gender, not by her interest in collecting stamps or her affection for a particular sports team. Courts have even found that the NYCHRL’s requirement of discrimination “because of” gender can be satisfied by allegations of entirely non-physical work interactions with sexual content or undertones. … These allegations adequately sustain the inference that the discriminatory treatment was gender-based.

Second, Plaintiff’s allegations equally support the inference that her status as a victim of domestic violence played a role in prompting the discriminatory conduct of which she complains. She alleges that, after working at Defendant Jaffe & Asher for six months, she experienced an episode of domestic violence. One week later, still visibly injured and distressed by this episode, Defendant Tseng invited her to a bar for a drink, asked her about her career, made sexual advances, and sought to kiss her. The Court can infer from these facts that Plaintiff’s recent and still self-evident status as a victim of domestic violence played a role in Defendant Tseng’s actions—as, indeed, Plaintiff expressly pleads elsewhere in the Complaint.

Third, the court held that plaintiff stated a claim for constructive discharge  under the State and City Human Rights Laws:

Just as above, Plaintiff’s allegations with respect to constructive discharge have an intermediate character. Whether a reasonable person in Plaintiff’s position would have felt obliged to resign after Defendant Tseng subjected her to sexual advances and made several forcible attempts to kiss her is a difficult question. Nonetheless, the Court cannot conclude that, as a matter of law, Plaintiff’s allegations are insufficient to proceed with these claims.