In Kasperek v. N.Y. State, Dep’t of Corr. & Cmty. Supervision, No. 16-CV-671V, 2017 WL 85426 (W.D.N.Y. Jan. 10, 2017), the court recommended the denial of defendant’s motion to dismiss plaintiff’s claim of sex-based hostile work environment.
The facts (in part), as summarized by the court:
The events pertaining to this case began on October 31, 2012. That day, Kasperek found drawings of penises on her classroom door surrounding her name. Kasperek’s door was the only one of about 20 in the area that had graffiti on it. Kasperek has pled that access to the area near her classroom is locked and restricted in such a way that inmates could not go there themselves, implying that a DOCCS employee drew the graffiti or allowed it to happen. Kasperek complained to her supervisors, and the supervisors made arrangements to remove the graffiti. The arrangements, however, involved male inmate crews and not DOCCS maintenance staff, which allowed male inmates to become aware of what happened. “This behavior undermined Ms. Kasperek’s authority and discredited her credibility with inmates and staff alike. The harassment was treated as a joke and not as a serious offence, thus making it okay to come into contact with the offensive penis drawings.”
In finding that plaintiff sufficiently alleged a hostile work environment, the court explained:
The amended complaint contains several categories of conduct that, if proven true, could have worked in tandem to create a pervasive environment that detracted from Kasperek’s performance. Kasperek has pled that her classroom had been targeted multiple times for the same sexually offensive graffiti; the amended complaint contains an implication that no one else— including no men—had been targeted in this way. Kasperek has pled that DOCCS allowed inmates to become aware that Kasperek alone kept getting targeted for the graffiti; humiliation of prison authority figures in the presence of inmates can be actionable under the right circumstances. Cf. Jemmott v. Coughlin, 85 F.3d 61, 67 (2d Cir. 1996) (searching a corrections officer in front of inmates for carrying a pager in violation of prison policy). Kasperek’s work environment also included threatening telephone calls—likely from coworkers—and sexual slurs. Cf. Rother v. NYS Dep’t of Corr. & Cmty. Supervision, 970 F. Supp. 2d 78, 92 (N.D.N.Y. 2013) (denying dismissal of a hostile work environment claim that rested in part on sexual slurs); Seale v. Madison County, 929 F. Supp. 2d 51, 73 (N.D.N.Y. 2013) (dismissal of hostile work environment claim denied where a song with “sexually humiliating and degrading” lyrics was directed at the plaintiff and created an objectively severe hostile work environment). DOCCS at some point devised an “Action Plan” to address Kasperek’s complaints, indicating that Kasperek’s employer had full awareness of her allegations. A reasonable inference from the amended complaint, however, is that any remedial plans did not change the work environment and perhaps were not intended to bring about actual changes. Cf. Wills v. Key Food Stores Co-operative, Inc., No. 95 CV 5333 (SJ), 1997 WL 168590, at *5 (E.D.N.Y. Apr. 9, 1997) (denying a motion to dismiss in part where “[a]ccepting [his] allegations as true, Key Food knew their employees were harassing plaintiff, but did nothing about it.”). All of these alleged events occurred over a much longer timeline than the one-month timeline in Mormol v. Costco Wholesale Corp., 364 F.3d 54 (2d Cir. 2004) or the seven-month timeline in McKenna v. VCS Grp. LLC, No. CIV.A308CV1563VLB, 2009 WL 3193879 (D. Conn. Sept. 30, 2009). Together, the alleged events could have created an environment over several years that would remind Kasperek regularly that, for improper reasons, she would be better off leaving.
The court was careful to note, however, that plaintiff “has a lot to do during discovery to substantiate her allegations”, and that summary judgment might still be rendered against her. But “[f]or now, Kasperek’s scenario of improper marginalization plausibly could have happened, and that is enough.”