Court Upholds NYCCHR Finding of Constructive Discharge

In Automatic Meter Reading Corp. v. New York City, No. 162211/2015, 63 Misc. 3d 1211(A), 2019 N.Y. Slip Op. 50464(U), 2019 WL 1475080 (Sup Ct, Feb. 28, 2019), the court, inter alia, affirmed and enforced the New York City Commission on Human Rights’ finding of sexual harassment-based constructive discharge.

From the decision:

The NYCCHR found that “[t]he undisputed facts support the conclusion that in the three years preceding Cardenas’ termination, Fund engaged in a continuous campaign of sexually hostile, offensive and discriminatory harassment … conduct that was hostile enough to force [Cardenas] to quit” (NYCCHR Decision at 19), i.e., that Fund “deliberately created the working conditions that [Cardenas] claims were intolerable and forced [her] to resign” (Zimmer, 56 Misc 3d 1208[A] at *4).

Moreover, the record reflects that Cardenas, had in fact, on multiple occasions objected to the way Fund spoke to her and treated her in front of her colleagues and clients throughout the tenure of her employment, all to no avail (hearing tr at 49-50; 73). Fund himself claimed that he was “the court of last resort” (hearing tr at 803). Fund also admitted that he repeated behavior, such as hitting Cardenas in the buttocks with the umbrella despite Cardenas asking him to stop, because he thought it was funny. Courts have found that humiliating an employee in front of colleagues and failing to remedy the situation after complaining could compel a reasonable person to resign (see Thomas v. Tam Equities Inc., 6 Misc 3d 1021[A], *3 [Sup Ct, Queens County 2005] ). Given the breadth of incidents having occurred to Cardenas over the course of her employment at AMRC as found by the ALJ and confirmed by the NYCCHR, there is substantial evidence to warrant a finding of constructive discharge, and the NYCCHR’s Decision in this regard is rational.