In White–Barnes v New York State Department of Corrections and Community Supervision, No. 535384, 2023 N.Y. Slip Op. 01561, 2023 WL 2602608 (N.Y.A.D. 3 Dept. Mar. 23, 2023), the court modifying and reversing a lower order dismissing, on summary judgment, plaintiff’s claim of an age-based hostile work environment leading to her constructive discharge.
In sum, plaintiff, who was then 61 years old, was hired by defendant in 2017 and began training as a correction officer trainee at defendant’s academy, after which, she alleges, she was subjected to harassment and age discrimination during the first two days of her employment and was forced to resign.
From the decision:
Even accepting, arguendo, that defendant met its threshold burden demonstrating that the challenged conduct had a nondiscriminatory basis and, in any event, could not be imputed to defendant, plaintiff raised a triable question of fact as to defendant’s responsibility for subjecting her to a hostile work environment (see Gregorian v. New York Life Ins. Co., 211 AD3d 711, 713 [2d Dept 2022]). According to plaintiff, during her initial lineup a drill sergeant called her out of line, asked for her age and then said “God bless you” in front of the other trainees. From there, plaintiff testified that she immediately became known as “grandma” by the other trainees, correction officers or staff, being called “grandma” continuously and “[e]ach time we had to go to a different drill”; this included comments such as “walk up grandma,” “keep up grandma” and “move faster, grandma.” When the trainees were given a break that night, plaintiff testified that three female officers from a previous trainee class came to her room to ask if she was really in her sixties and why she applied for a correction officer job at her age. Plaintiff testified that she realized her nickname “was spreading like wildfire in the academy.”
Plaintiff testified that, at the start of the second day of training, her class was walking into the auditorium when an officer jumped out in front of her and yelled, “what the F did they let loose on us? Are they effing crazy?” and the group around her had “a good laugh.” Plaintiff testified that she became “depressed” about the comments and she then notified a female administrative sergeant, who plaintiff alleges had been present both days and witnessed the “grandma” comments, that she was resigning. Although the female administrative sergeant did not recall the incident or observe inappropriate language used by correction officers at the academy toward trainees, she testified that it was “possibly” her who handled plaintiff’s resignation papers. In reviewing the allegations of this action, the administrative sergeant admitted that she was “shocked” and found it “sad” if the discrimination did occur – she further testified that the alleged conduct would have been a violation of defendant’s age discrimination policy. This admission was echoed by other witnesses from defendant, who also did not recall the specific allegations.
Even though plaintiff admitted that she was prepared for the intensive, para-military nature of an academy, she testified that she was not prepared for the humiliation based on the discriminatory conduct that was “singling [her] out by [her] age.” Despite that many of defendant’s witnesses – including the drill sergeant – did not have a recollection of the alleged discriminatory conduct, the Equal Employment Opportunity Commission still had determined that there was reasonable cause to believe that defendant discriminated against plaintiff; such finding, although not dispositive, is some evidence of discrimination (see Short v. Deutsche Bank Sec., Inc., 79 AD3d 503, 504 [1st Dept 2010]). Given that the conduct spread beyond staff and plaintiff’s trainee class, but also to members of a previous class, further demonstrates the pervasive nature of the alleged discriminatory conduct – particularly in such a short period before plaintiff’s resignation. Accordingly, based on the foregoing, particularly plaintiff’s account of the drill sergeant’s conduct and the candid admissions by the administrative sergeant as to the objective nature of the comments being discriminatory (see Reynolds v. State of New York, 180 AD3d at 1119; compare Minckler v. United Parcel Serv., Inc., 132 AD3d at 1188), we are satisfied that this proof, when viewed in a light most favorable to plaintiff, is sufficient to survive summary judgment and warrant a trial on plaintiff’s hostile work environment claim.
The court further noted that “the inaction in the record by defendant’s staff, combined with the allegations that supervisors had knowledge of the conduct but ignored it, also raises a triable question of fact regarding whether plaintiff’s resignation was prompted by working conditions that were so intolerable, difficult or unpleasant and condoned by defendant.”