In Franco v. City of New York et al, 19-CV-5905 (AMD) (CLP), 2025 WL 964014 (E.D.N.Y. March 31, 2025), the court, inter alia, denied defendants’ motion for summary judgment on plaintiff’s discrimination (sexual harassment) claim asserted under the New York City Human Rights Law (NYCHRL).
From the decision:
The Second Circuit has held that under the NYCHRL, all employees are “entitled to an environment free from sexual harassment.” Mihalik, 715 F.3d at 114; see id. at 113–14 (reversing district court’s grant of summary judgment because a jury could reasonably find that the plaintiff was treated “less well” than her male colleagues because she had to suffer unwanted sexual attention). Indeed, courts in this circuit have held that conduct like Herrera’s may form the basis of a hostile work environment claim. See Redd, 678 F.3d at 179 (reversing grant of summary judgment where the plaintiff alleged that her supervisor, who was of the same-sex, touched her breasts three times); Wahlstrom v. Metro-N. Commuter R.R. Co., 89 F. Supp. 2d 506, 521 (S.D.N.Y. 2000) (single incident where co-worker approached plaintiff from behind, gave her a bear hug, made a grunting sound, and slapped her left buttock three times sufficient to defeat motion for summary judgment on hostile work environment claim because “physical contact between the parties was neither harmless nor accidental”); Guzman v. Macy’s Retail Holdings, Inc., No. 09-CV-4472, 2010 WL 1222044, at *4 (S.D.N.Y. Mar. 29, 2010) (denying motion to dismiss hostile work environment claim where the plaintiff alleged that a co-worker “rubbed his genitals against her body, and then repeated that action after the plaintiff asked him to stop”).
The defendants nonetheless argue that they are entitled to summary judgment because the plaintiff has not demonstrated that Herrera’s conduct was because of his sex, as he must even under the more liberal NYCHRL standard, presumably because the plaintiff and Herrera are both men. (ECF No. 65 at 17.)8 But the defendants’ argument still misses the mark.
“[T]he question of whether considerations of the plaintiff’s sex ‘caused the conduct at issue often requires an assessment of individuals’ motivations and state of mind.’ ” Redd, 678 F.3d at 178 (2d Cir. 2012) (emphasis in original) (quoting Kaytor v. Elec. Boat Corp., 609 F.3d 537, 548 (2d Cir. 2010)). When fact questions such as “state of mind or intent are at issue,” as they often are in sexual harassment cases, summary judgment “should be used sparingly.” Id. (internal quotation omitted). “So long as there is some evidentiary basis for inferring that facially sex-neutral incidents were motivated by the plaintiff’s gender, the ultimate question of whether such abuse was ‘because of’ the plaintiff’s gender is a question of fact for the factfinder.” Kaytor, 609 F.3d at 548.
In cases of same-sex harassment, a plaintiff can establish that the harassment was “because of” his sex in a variety of ways. For example, he may present “credible evidence of the words and actions of a same-sex harasser [that] suggest sexual desire” from which “a rational juror can find that the harasser’s conduct was based on sex, irrespective of whether the plaintiff provides evidence of the harasser’s homosexuality.” Burke v. Villa, No. 19-CV-2957, 2021 WL 5591711, at *7 (E.D.N.Y. Nov. 30, 2021); see also id. (collecting cases). The plaintiff could also show that same-sex harassment was discrimination based on sex by pointing to “direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.” Redd, 678 F.3d at 178 (quoting Oncale, 523 U.S. at 81).
When viewed in the light most favorable to the plaintiff, there is sufficient record evidence to create a triable issue of fact about whether Herrera’s conduct was “because of” the plaintiff’s sex. Most obviously, witnesses saw Herrera rub his genitals against several male co-workers (see, e.g., Pl. 56.1 ¶¶ 7–11; Alexander Dep. 36:21–39:5; Wellington Dep. 42:14–45:7; ECF No. 69-6, Declaration of Joseph Edgar, ¶¶ 3–7; ECF No. 69-7, Declaration of Daniel O’Hare, ¶¶ 8–10, 12), but there was no evidence that he behaved the same way to the female employee who worked in the BME. (Alexander Dep. 40:19–41:3.) Moreover, a reasonable jury could find from the very nature of the harassment — grinding on the plaintiff’s buttocks and caressing the plaintiff’s arm — that Herrera was motivated by sexual desire.
To be sure, a jury could also find that Herrera was just joking. “But the line between teasing or hazing and sexual harassment is not always simple to discern, and it is not the court’s place to supplant the factfinder’s role and make such determinations.” Burke, 2021 WL 5591711, at *8 (internal quotations omitted).
Based on this, denial of defendants’ motion was warranted.