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Court Dismisses NYPD Nurse’s Same-Sex Hostile Work Environment Sexual Harassment Case

by mjpospis on March 4, 2017

in Employment Discrimination, Employment Law, Gender Discrimination, Hostile Work Environment, Retaliation, Same-Sex Sexual Harassment, Sexual Harassment

In Sanderson-Burgess v. City of New York, 2016 NY Slip Op 32007(U) (NY Sup. Ct. Qns. Cty. 700149/2011, Sept. 8, 2016) [Google Scholar version], the court granted defendants’ motion for summary judgment dismissing plaintiff’s various claims, including for hostile work environment sexual harassment, aiding and abetting, and retaliation.[1]Court records indicate that plaintiff has filed a Notice of Appeal of the court’s Decision and Order.

The court summarized plaintiff’s allegations (in part) as follows:

Plaintiff contends she was subjected to sexual harassment by Brown and a resulting hostile work environment from January 2007 until June 2008. In her complaint, plaintiff alleges that Brown, during that period, “made offensive and sexually suggestive comments” to her about plaintiff’s “need to show her more cleavage … need to wear high heels … need to wear floral skirts … need to wear white pants … pretty pink lipstick” and that plaintiff looked and smelled “delicious.” At her deposition, plaintiff admitted that she perceived Brown’s comments to be sexual in nature only “sometimes” and when asked, individually, whether she thought each such comment was “sexual,” she answered “yes” only once, responding instead with “it was inappropriate,” or “I did not like it,” or it “was just very annoying.” Additionally, plaintiff stated that Brown, on several occasions over the alleged eighteen-month period, inappropriately “touched,” “rubbed,” “grabbed,” or “poked” plaintiff on the face, neck, arms, wrist, left thigh and hip, only some of which incidents plaintiff characterized as having been “sexual” in nature, and on each such occasion, plaintiff told Brown to stop touching her. According to plaintiff’s deposition testimony, the last “touching” by Brown occurred in June 2008. Further, plaintiff claims she was subjected to retaliation by the Police Department and its defendant employees for her having “rebuffed Brown’s advances” or “filed a complaint against Brown.” Said retaliation was allegedly in the form of, among other things, “an increased workload and number of assigned districts”, assignments which should have been voluntary, a lack of overtime hours and requested leave, and the placement of a tape recorder under her desk.

Citing the U.S. Supreme Court’s decision in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), the court said:

In order to establish gender-based harassment in a same-sex harassment case, plaintiff was required to claim that she was harassed because she was female; to allege that Brown was homosexual; to suggest that Brown was motivated by a general hostility to women in the workplace; and to proffer evidence that members of different genders were treated differently.

It found that plaintiff “failed to raise and/or proffer evidence in admissible form applicable to any of these necessary contentions.”

The court also held that plaintiff could not make out a claim of hostile work environment sexual harassment under the New York State Human Rights Law (which required her to demonstrate conduct that was “severe or pervasive“) or the comparatively broader New York City Human Rights Law (which required her to demonstrate that she was “treated less well” than other employees because of her gender).

In its view, “plaintiff’s allegations can reasonably be interpreted by a trier of fact to be no more than ‘petty slights and trivial inconveniences,’ which, while offensive, do not rise to an actionable level under the City HRL.”

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1. Court records indicate that plaintiff has filed a Notice of Appeal of the court’s Decision and Order.

Categories: Employment Discrimination, Employment Law, Gender Discrimination, Hostile Work Environment, Retaliation, Same-Sex Sexual Harassment, Sexual Harassment

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