Court Dismisses “Quid Pro Quo” Sexual Harassment Claim; Tangible Employment Action Missing

In Kenney v. State of New York, Office of Children and Family Services, 16-cv-4522, 2017 WL 5633166 (S.D.N.Y. Nov. 20, 2017), the court dismissed plaintiff’s “quid pro quo” sexual harassment claim.[1]In the same opinion, the court denied defendants’ motion for summary judgment on plaintiff’s “hostile work environment” claim; I discussed that aspect of the decision here.

The court summarized the law as follows:

Quid pro quo sexual harassment occurs when an employer “alters an employee’s job conditions or withholds an economic benefit because the employee refuses to submit to sexual demands.” Carrero v. N.Y.C. Hous. Auth., 890 F.2d 569, 577 (2d Cir. 1989). “When a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor’s sexual demands, he or she establishes that the employment decision itself constitutes a change in the terms and conditions of employment that is actionable under Title VII.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753–54 (1998). See also Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 604 (2d Cir. 2006) (“To state a quid pro quo claim, [the plaintiff] must show a ‘tangible employment action,’ i.e., that an ‘explicit … alteration[ ] in the terms or conditions of employment’ resulted from her refusal to submit” to her supervisor’s sexual advances.) (quoting Mormol v. Costco Wholesale Corp., 364 F.3d at 57).

“A tangible employment action usually ‘constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.’ ” Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 604 (2d Cir. 2006) (quoting Mormol v. Costco Wholesale Corp., 364 F.3d at 57). Such tangible employment actions “are established when a plaintiff proves that an action, such as a firing or demotion, resulted from a refusal to submit to a supervisor’s sexual demands, or that an employer demanded sexual favors from an employee in return for a job benefit.” Jin v. Metro. Life Ins. Co., 310 F.3d 84, 91 (2d Cir. 2002) (internal citations and quotation marks omitted). “A tangible employment action in most cases inflicts direct economic harm, but there is no requirement that it must always do so.

Applying the law, the court explained why plaintiff’s claim failed:

Here—aside from the constructive discharge claim, which is discussed below—plaintiff appears only to allege she suffered tangible effects on her employment on January 27, 2015, when Davis yelled at her and assigned her new work duties—namely assigning her to perform bed checks and clean certain areas of the facility—after she rebuffed his advances toward her. (See Pl.’s Resp. to Defs.’ SOF ¶ 37; EODD Report at 5). Davis apparently then “documented [plaintiff’s] insubordination ‘in the AOD log book.’ ” (EODD Report at 6).

These allegations are insufficient as a matter of law to show a tangible employment action. There is no evidence that Davis’s change in behavior or the change in plaintiff’s duties affected plaintiff’s pay, benefits, or employment status, or were a significant reassignment at Red Hook. This is especially true because plaintiff alleges that although she may have cleaned the facility, she did not in fact perform the bed checks, instead calling Smith about it, who told her she did not need to complete this task. (Kenney Dep. at 145). In addition, the EODD investigation revealed that “[c]leaning appear[ed] to be among several CSU tasks that were at the time still being clarified by the facility,” and that Davis’s “request to [plaintiff] regarding bed checks also seemed to be based on his understanding of an evolving policy.” (EODD Report at 8). Finally, plaintiff continued to work at Red Hook for several months after this change in assignments while Davis was on administrative leave, undermining her claim that his actions on January 27, 2015, had a tangible effect on her employment.

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1. In the same opinion, the court denied defendants’ motion for summary judgment on plaintiff’s “hostile work environment” claim; I discussed that aspect of the decision here.