In Buscaino v. Dircksen & Talleyrand, Inc. and Ariel Echevarria, 22-CV-7572 (AMD) (PK), 2025 WL 777085 (E.D.N.Y. March 11, 2025), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s sex-based hostile work environment claims under Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, and the New York City Human Rights Law.
After summarizing the black-letter law, and concluding that plaintiff presented sufficient evidence to raise a genuine dispute of material fact as to the existence and pervasiveness of the alleged harassment, the court turned to the question of whether there were sufficient facts to raise an issue as to whether the harassment was “because of” plaintiff’s sex.
The answer, according to the court, is yes:
The parties agree that Echevarria’s comments about the plaintiff’s physical appearance were gender based. The defendants contend, however, that Echevarria’s criticism after the plaintiff’s conversation with Steelman about a promotion was not “because of” her gender. (ECF No. 41 at 22–23.)
In determining whether the plaintiff has “establish[ed] that the abuse was based on her gender,” courts can consider “[f]acially neutral incidents … among the ‘totality of the circumstances’ … so long as a reasonable fact-finder could conclude that they were, in fact, based on sex.” Kaytor v. Elec. Boat Corp., 609 F.3d 537, 547 (2d Cir. 2010). Because this inquiry “often requires an assessment of individuals’ motivations and state of mind,” “the court should not view the record in piecemeal fashion,” and “summary judgment should be used sparingly.” Id. at 548.
The plaintiff claims that Echevarria often made comments about her appearance, and that he did not make similar comments to the men who worked in the kitchen. (Buscaino Decl. ¶¶ 11, 13; see also Buscaino Dep. 137:10-16 (“Q. Did you ever hear [Echevarria] say anything you considered to be inappropriate to another man in the kitchen? A. Not really. I tried not to listen in to his conversations like that.”).) See Hayut, 352 F.3d at 748 (finding sufficient evidence that professor’s harassment was based on student’s gender where the comments were “not likely to have been uttered but for” plaintiff’s gender). After the plaintiff talked to Steelman about a promotion, Echevarria started criticizing her for things like texting and talking on her phone, but did not criticize the male employees for the same behavior. (Pl. 56.1 ¶ 135; Defs. 56.1 ¶ 135.) See, e.g., DeAngelis v. City of Bridgeport, No. 14-CV-01618, 2017 WL 3880762, at *7 (D. Conn. Sept. 5, 2017) (denying summary judgment on gender-based hostile work environment claim where testimony that “supervisors behaved in a verbally abusive, hostile manner toward women and not toward men could allow a reasonable jury to conclude that plaintiff was exposed to the hostile work environment she describes because of her gender.”). Echevarria “yelled at and scolded [the plaintiff] to not be talking on the line” (Buscaino Dep. at 138:12-18) but did not criticize the male line cooks when they did the same thing (id. 143:10-25).
Accordingly, the court held that under these circumstances, “there is a genuine issue of material fact about whether Echevarria criticized and harassed the plaintiff because of her gender.”