In Collymore v. City of New York et al, 16-CV-8270-LTS-OTW, 2023 WL 5834784 (S.D.N.Y. Sept. 8, 2023), the court granted defendants’ motion for summary judgment on plaintiff’s sexual harassment claims.
Under the operative statutes, plaintiff was required to show that the discriminatory harassment she experienced was “because of” a protected characteristic – here, sex.
Applying the law, the court explained:
[E]ven if Maluf’s unwanted touching rose to the level of harassment, Collymore’s sexual harassment claims fail because she has not proffered evidence sufficient to establish that Maluf’s behavior was sex-based. In her Complaint, Collymore alleged that Maluf’s touching was widespread, and she did not allege the behavior was targeted to one sex. Collymore also testified, when asked whether she remembered Maluf touching individuals other than two men she mentioned specifically, that Maluf “touched everyone.” She said nothing to suggest a predominance of attention to Collymore herself, or to women in general. Nevertheless, Collymore argues in this motion practice that Maluf’s behavior was sex-based, pointing to (1) her own conclusory declaration that Maluf touched women more than she touched men, and (2) Maluf’s testimony that she had “caught herself” touching two women – Tanya Murphy and Widade Larchan – after Collymore had complained. Collymore’s conclusory declaration stating, in contrast to her testimony at deposition, that she “observe[d] Ms. Maluf touch women more than men in the office,” is insufficient to create a triable issue of fact. … Additionally, the fact that Maluf admitted to touching Murphy and Larchan does not itself establish that she engaged in a pattern of harassment against women because of their sex, particularly in light of Collymore’s testimony that Maluf “touched everyone” including two men, Gene Yurman and David Kirks. (See Collymore Dep. at 70:7-8, 75:16-24; see also Brennan v. Met. Opera Ass’n, Inc., 192 F.3d 310, 318-19 (2d Cir. 1999) (finding that indiscriminate harassment that is not targeted to any one sex cannot be because of sex).) [Cleaned up.]
Based on this, the court held that plaintiff “provided insufficient evidence to create a genuine issue of material fact as to whether Maluf’s touching was sex-based,” warranting summary judgment in defendants’ favor.