Sexual Harassment Case (Including Facebook “Boobs” Comment) Survives Motion to Dismiss

In La Porta v. Alacra, Inc., 2016 NY Slip Op 06113 (App. Div. 1st Dept. Sept. 22, 2016), the court held that plaintiff stated claims for hostile work environment sexual harassment and retaliation (but not hostile work environment-based constructive discharge).

The court summarized plaintiff’s claims as follows:

Plaintiff, the manager of defendant Alacra’s New York City office, alleges that defendant Armen Galoustian was a male employee with a history of sexually harassing female coworkers. In 2015, plaintiff and other employees witnessed Galoustian engage in unwanted touching and harassing of two female employees. Alacra’s management was aware of Galoustian’s conduct but did nothing to correct it. On March 15, 2015, a Saturday, Galoustian sent plaintiff an unsolicited, offensive message on Facebook stating that her “boobs are someging [sic].” Plaintiff immediately reported the remark to defendant Craig Kissel, Alacra’s chief financial officer and her direct supervisor. She also promptly reported the remark to Alacra’s chief executive officer (CEO). Plaintiff followed up by complaining about Galoustian’s offensive conduct to Kissel when she returned to the office on Monday. She also complained that week to Alcara’s CEO, and Alacra’s president. Instead of correcting Galoustian or otherwise meaningfully reassuring plaintiff that he would not follow up on his sexually offensive message with the further sexual harassment he was known to have proclivities for, Alacra’s managers rebuffed plaintiff and completely isolated her for the remainder of her stay at the company. Fearful that Galoustian, unrestrained by management, would harass her, plaintiff suffered a relapse of her preexisting Graves’ disease, a stress-variable autoimmune disorder, forcing her to seek medical care. Plaintiff ultimately found the situation to be unbearable, and resigned on August 26, 2015. (Emphasis added.)

The court held that “[b]ased on these allegations, plaintiff has stated a viable claim for sexual harassment creating a hostile work environment under the New York City Human Rights Law (City HRL)” but that her allegations did not “suffice to state a claim under the stricter standard governing constructive discharge stemming from a hostile work environment.”

In holding that plaintiff stated a retaliation claim under the NYC Human Rights Law, the court explained:

We reject defendants’ argument that plaintiff has failed to allege that she engaged in any protected activity because the Facebook message she complained about is not independently actionable. A plaintiff need not establish an underlying HRL violation in order to prevail on a retaliation claim (see Pace v [*2]Ogden Servs. Corp., 257 AD2d 101, 104 [3d Dept 1999]), and, based on her allegations, it can be readily inferred that she had a “good faith, reasonable belief that the underlying challenged actions . . . violated the law” (Manoharan v Columbia Univ. Coll. of Physicians & Surgeons, 842 F2d 590, 593 [2d Cir 1998] [internal quotations marks omitted]). In addition, her allegations of being rebuffed and isolated by Alacra’s management sufficiently stated disadvantageous actions by defendants as a result of her complaints to management.

Plaintiff also “sufficiently stated an aiding and abetting claim against Kissel since, among other things, she has sufficiently stated claims under the City HRL for sexual harassment and retaliation.”

Finally, the court held that while plaintiff may maintain claims for punitive damages and attorney fees under the City Human Rights Law, those claims may not be maintained as separate causes of action.