In Reilly v. First Niagara Bank, N.A., 2019 NY Slip Op 04974 (App. Div. 2nd Dept. June 19, 2019), the court affirmed the dismissal – for failure to state a claim under CPLR 3211(a)(7) – of plaintiff’s sex-based discrimination and hostile work environment claims under the New York State Human Rights Law, Executive Law § 296.
In this case, plaintiff sues her employer to recover damages for employment discrimination and hostile work environment on the basis of sex, primarily based upon the conduct of and comments made by her supervisor.
While the decision does not provide factual detail (which the lower court does), it is nevertheless instructive on the legal framework courts apply to such claims:
On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the complaint a liberal construction, accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88; Sokol v Leader, 74 AD3d 1180, 1181). Here, the plaintiff failed to allege a cognizable cause of action to recover damages for employment discrimination based on sex in violation of Executive Law § 296 (see Torres v Louzoun Enterprises, Inc., 105 AD3d 945). The plaintiff failed to allege that an adverse employment action occurred under circumstances giving rise to an inference of discrimination based on her sex (see Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305; Llanos v City of New York, 129 AD3d 620; Scarfone v Village of Ossining, 23 AD3d 540, 541). Moreover, the facts asserted in support of the plaintiff’s allegations of a hostile work environment “fell short of [alleging] that the workplace [was] permeated with discriminatory intimidation, ridicule, and insult . . . that [was] sufficiently severe or pervasive to alter the conditions of the [plaintiff’s] employment and create an abusive working environment” (Kamen v Berkeley Coop. Towers Section II Corp., 98 AD3d 1086, 1087 [internal quotation marks omitted]; see Harris [*2]v Forklift Systems, Inc., 510 US 17, 21). Further, the plaintiff failed to sufficiently allege that the defendant became a party to such alleged conduct “by encouraging, condoning, or approving it” (Beharry v Guzman, 33 AD3d 742, 743; see Matter of State Div. of Human Rights v St. Elizabeth’s Hosp., 66 NY2d 684, 687; Matter of Totem Taxi v New York State Human Rights Appeal Bd., 65 NY2d 300, 305).