In Mahoney v. City of Albany, No. 534635, 2022 WL 17835340 (N.Y.A.D. 3 Dept. Dec. 22, 2022), the court, inter alia, held that plaintiff’s claim of sexual harassment may proceed against an individual defendant.
From the decision:
Viewing the evidence in a light most favorable to plaintiff, as required on defendants’ motion for summary judgment (see Raspardo v. Carlone, 770 F3d at 113), we conclude that the events described by plaintiff, which at one point caused her to alter the way she dressed at work, together with her testimony that Tierney made up to 100 sexual comments about her and other women in a two-year period, constitute the type of severe and pervasive conduct required for a hostile work environment claim (compare Cowan v. City of Mount Vernon, 95 F Supp 3d 624, 643–644 [SD N.Y.2015]; Minckler v. United Parcel Serv., Inc., 132 AD3d 1186, 1188–1189 [3d Dept 2015] ). Because questions of fact remain as to whether Tierney violated plaintiff’s equal protection right to a harassment-free workplace in public employment, Supreme Court appropriately declined to dismiss the 42 USC § 1983 claim against him based on qualified immunity (see Raspardo v. Carlone, 770 F3d at 113–114). Similarly, defendants have not shown that Tierney’s alleged conduct was “discretionary in nature, involving the exercise of reasoned judgment” so as to fall within the ambit of the state’s qualified immunity doctrine (Dawson v. County of Westchester, 351 F Supp 2d at 200; see Mon v. City of New York, 78 N.Y.2d 309, 313 [1991] ), thus precluding dismissal of the Human Rights Law cause of action against Tierney.
The court, however, declined to permit plaintiff’s claims to proceed against additional individual defendants, finding that those defendants were entitled to qualified immunity.