In Fisher v. Mermaid Manor Home for Adults, LLC, No. 14-CV-3461 (WFK)(JO), 2016 WL 3636021 (E.D.N.Y. June 29, 2016), the court denied defendant’s motion for summary judgment on plaintiff’s race/national origin-based hostile work environment claim.
Plaintiff sued after being apprised by co-workers of an Instagram post which “consisted of two photographs of Plaintiff contrasted with a photograph of the fictional chimpanzee Cornelius from the movie Planet of the Apes”.
First, the court rejected defendant’s argument that plaintiff failed to exhaust her administrative remedies because she did not check the “national origin” box in her EEOC charge:
The Second Circuit … has recognized that[] [t]he line between national origin discrimination and racial discrimination is difficult to trace, courts have warned that an attempt to make such a demarcation before both parties have had an opportunity to offer evidence at trial is inappropriate. Similarly, courts should not attempt to draw overly fine distinctions between race and national origin claims as part of the threshold exhaustion inquiry prior to the full development of a plaintiff’s claims, given the potential overlap between the two forms of discrimination, and the “loose pleading” which is permitted in the EEOC complaint.
Plaintiff’s failure to check the “National Origin” box in her EEOC Charge does not preclude her from filing this action. The purpose of this exhaustion requirement is to give the administrative agency the opportunity to investigate, mediate and take remedial action. Here, an EEOC investigator would immediately find that the alleged discrimination occurred among individuals with the same skin color, and an EEOC investigation would be unable to disentangle national origin from race. (Paragraphing altered.)
As to plaintiff’s hostile work environment claim, the court explained:
To demonstrate a hostile work environment, Plaintiff must establish two elements: (1) a workplace with discriminatory intimidation, ridicule, and insult … that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment; and (2) a specific basis … for imputing the conduct that created the hostile environment to the employer[.]
As to the first element, the court held:
Here, a reasonable jury could find that the Instagram post, comparing Plaintiff to a fictional chimpanzee from the Planet of the Apes movie, created a hostile work environment. … The Instagram post, published to the world and seen by Plaintiff’s co-workers, humiliated Plaintiff to such an extent that she was found crying in the Mermaid Manor dining room.
As to the second element, the court held that this conduct could be imputed to the employer in light of evidence that, e.g., “Defendant knew of the harassment but did nothing about it.”
The court also denied defendant’s motion for summary judgment on plaintiff’s retaliation claim:
Here, Plaintiff alleges that Defendant took the adverse action through acquiescence in the face of known harassment. A reasonable worker could equate this acquiescence to adverse action, i.e., allowing Ms. Kelly to intentionally run into and hit Plaintiff, laugh in Plaintiff’s face in front of co-workers, attempt to intimidate Plaintiff before patients, scramble patient papers from Plaintiff’s workbook, and block doorways such that Plaintiff could not pass. After enduring this conduct, Plaintiff “elected” to reduce her work schedule from five days to two days. Furthermore, as to causation, a reasonable jury could find that Defendant’s acquiescence forced Plaintiff to elect to work part time.
Update: This matter proceeded to a jury trial, resulting in a jury verdict (jury instructions here) for plaintiff on most of her claims and an award of $25,000 in actual damages and $250,000 in punitive damages under Title VII and the NYC Human Rights Law.