Sexual Harassment (Hostile Work Environment) Claim Survives Summary Judgment

From Rodriguez v. Zee Brothers, Inc., 2017 WL 2290208 (NY Sup. Ct. Bx Cty. No. 21149/2015E April 20, 2017):

In this case, Defendants argue that the sexual harassment cause of action must be dismissed because there is simply no evidence of such harassment. Defendants assert “Plaintiff’s claims do not make clear whether she is proceeding under a quid pro quo harassment theory of a hostile work environment theory. In either event, the complete absence of evidence renders the analysis the same” (Defs.’ Br. At Page 13). Plaintiff’s deposition testimony and supplemental affidavit, however, contains a host of allegations against defendant Ramos, her alleged supervisor or manager, alleging that he, among other things: inappropriately touched her without consent; asked her for a kiss so she wouldn’t have to work as hard, or could come in late; asked her to go take a cab together to a hotel to have sex; made inappropriate comments asking her to leave her husband; constantly stare at her during work hours; openly discussed his attraction to her with other employees; that Ramos became physically aggressive when Plaintiff rejected his advances. Plaintiff further alleges that Ramos advised Plaintiff to “get rid of” her pregnancy and and “have an abortion;” and stated, among other things, “[w]e don’t need you anymore. Pregnant women are worthless” and “[y]ou are not worth anything to this store with that belly.” Plaintiff further alleges that she eventually complained to Ramos and Annalise about this conduct, but nothing was done, and Ramos did not allow her to speak with the owners of Zee Brothers – co-defendants Grego and Zeitoune – about her complaints. The foregoing allegations are sufficient to demonstrate a viable cause of action of a hostile work environment under both State and City HRL (see Hernandez v. Kaisman, 103 A.D.3d 106; see, e.g., Cole v. Sears, Roebuck & Co., 120 A.D.3d 1159 [1st Dept. 2014]).

While Defendants have submitted affidavits denying that any of the foregoing took place, those affidavits do not eliminate all material issues of fact. Plaintiff’s failure to provide documentary evidence (aside from an audio recording) is not fatal to her allegations. Indeed, a plaintiff may demonstrate the existence of a hostile work environment or discriminatory conduct through her own deposition testimony (see, e.g., Kapchek v. United Refining Co., Inc., 57 A.D.3d 1521 [4th Dept. 2008]; see also Sier v. Jacobs Persinger & Parker, 276 A.D.2d 401,401-402 [1st Dept. 2000]; see also Belton v. Lal Chicken, 138 A.D.3d 609 [1st Dept. 2016][jury credited plaintiff’s testimony and court properly admitted video tape of the supervisor’s conduct]). This Court cannot resolve issues of credibility at the summary judgment stage (see Vega v. Restani Constr. Corp., 18 N.Y.3d 499), and a defendant cannot prove entitlement to summary judgment by merely pointing to gaps in a plaintiff’s proof (see Alvarez v. 21st Century Renovations, Ltd., 66 A.D.3d 524 [1st Dept. 2009]). This Court further notes that, in any event, Defendants’ moving papers failed to adequately address their entitlement to dismissal of Plaintiff’s hostile work environment cause of action. Accordingly, Defendants are not entitled to summary judgment on these claims.