In Menos v. Uncle Nearest, Inc. et al, 22-CV-1449 (PKC) (PK), 2025 WL 917347 (E.D.N.Y. March 25, 2025), the court, inter alia, denied defendants’ motion for summary judgment on plaintiff’s sexual harassment claims asserted under the New York State and City Human Rights Laws.
From the decision:
Plaintiff’s sexual harassment claims rely predominantly on three sets of allegations: (1) Harper touching Plaintiff’s buttocks on two occasions in June 2021; (2) Harper’s inquiries into Plaintiff’s personal life; and (3) Harper’s late-night text messages. Defendants assert that these claims must be dismissed, under both the NYSHRL and NYCHRL, because Plaintiff’s allegations, whether taken individually or together, do not rise above the level of petty slights and trivial inconveniences. The Court disagrees.
With respect to the alleged touching incidents, Plaintiff testified at her deposition that at a company retreat on June 15, 2021, Harper patted her upper back, slid his hand down her back, and “let his hand rest on [her] buttocks momentarily.” Plaintiff described the touching as “groping” or “grabbing.” Though she could not recall precisely how long Harper touched her buttocks, she described it as “too many seconds” and that it “felt like forever.” (Id. at 239:2–18). Plaintiff testified that this happened again on June 19, 2021, when Harper “patted [her] upper back and slid his hand down [her] buttocks.” (Id. at 285:12–20.) Plaintiff described the touching as a “grab” but “not [a] squeeze,” and testified that it lasted somewhere between a few seconds and a minute. These allegations are also memorialized in the sexual harassment and hostile work environment complaint that Plaintiff sent to Uncle Nearest leadership, including Weaver, on July 1, 2021. Harper denied that these incidents occurred in his deposition testimony.
The Second Circuit has stated that “[d]irect contact with an intimate body part constitutes one of the most severe forms of sexual harassment.” Redd v. N.Y. Div. of Parole, 678 F.3d 166, 180 (2d Cir. 2012).16 As Plaintiff notes, there have been several cases in this Circuit in which a hostile work environment claim was established by a single instance of unwanted contact with an intimate body part. (Pl.’s Br., at 4–5); see, e.g., Reid v. Ingerman Smith LLP, 876 F. Supp. 2d 176, 185 (E.D.N.Y. 2012) (holding that an allegation of a single instance of a supervisor grabbing an employee’s breast was sufficient to state a claim for hostile work environment); Dillon v. Ned Mgmt., Inc., 85 F. Supp. 3d 639, 663 (E.D.N.Y. 2015) (finding that where employee’s supervisor grabbed her buttock, “[t]his single incident of contact is sufficient to constitute the creation of a hostile work environment”); Stathatos v. Gala Res., LLC, No. 06-CV-13138 (RLC), 2010 WL 2024967, at *5 (S.D.N.Y. May 21, 2010) (holding that plaintiff’s allegation that a supervisor “intentionally groped her buttocks can alone defeat defendants’ motion for summary judgment”). Defendants attempt to distinguish these cases by claiming that they consisted of more overtly sexual and demeaning conduct than the allegations at issue here because those cases included allegations of other sexually explicit advances and comments. (Defs.’ Reply, at 2–3.) But, as explained above, the law in this Circuit is clear that even a single incident involving unwanted contact with an intimate body part can defeat summary judgment.
Defendants also unconvincingly attempt to liken Plaintiff’s allegations of unwanted physical contact to cases in which claims of harassment were dismissed as simply petty slights or trivial inconveniences. (Defs.’ Br., at 12–13); see, e.g., Russo v. New York Presbyterian Hosp., 972 F. Supp. 2d 429, 451 (E.D.N.Y. 2013) (dismissing hostile work environment claims where plaintiff alleged a supervisor “brushed against Plaintiff’s body as he walked past her” and “trapped Plaintiff directly in front of his crotch by refusing to lift his leg up as she tried to walk past”); Lucas v. S. Nassau Cmtys. Hosp., 54 F. Supp. 2d 141, 147 (E.D.N.Y. 1998) (finding plaintiff failed to establish a prima facie case of hostile workplace discrimination where supervisor allegedly “brushed up against plaintiff” several times and “touched plaintiff’s back or shoulder” several times); Dayes v. Pace Univ., No. 98-CV-3675 (WHP), 2000 WL 307382, at *3–5 (S.D.N.Y. Mar. 24, 2000), aff’d, 2 F. App’x 204 (2d Cir. 2001) (summary order) (finding allegations that employee’s supervisor made several sexual and vulgar comments and touched plaintiff’s back were not sufficiently “severe or pervasive” to survive summary judgment). None of these cases are analogous here. First, Defendants’ reliance on cases evaluating whether conduct is “severe” or “pervasive” is “inapposite because the federal ‘severe or pervasive’ standard of liability does not apply to NYCHRL or … post-amendment NYSHRL claims.” Mitura v. Finco Servs., Inc., 712 F. Supp. 3d 442, 452 (S.D.N.Y. 2024), recon. denied, 2024 WL 1160643 (S.D.N.Y. Mar. 18, 2024). Further, Plaintiff is not alleging that Harper incidentally brushed past her or that he only touched her back or shoulder; Plaintiff is alleging that Harper, on two separate occasions, deliberately slid his hand down her back and grabbed her buttocks. “Intentionally grabbing, squeezing, or otherwise feeling an intimate part of another’s body is vastly different than brushing against it—whether on purpose or by accident.” Reid, 876 F. Supp. at 185. Whether the alleged touching incidents actually occurred is a genuine issue of material fact for a jury to determine.
In addition to the alleged touching incidents, Plaintiff asserts that Harper’s alleged inquiries into her personal life and several late-night text messages further support her hostile work environment claims. Plaintiff testified that between January and May 2021, Harper asked about her “loved one” or “significant other” repeatedly in a “flirtatious tone” that she believed to be “too personal,” even though she could only remember a few specific instances. On June 24, 2021, several days after the alleged touching incidents, Harper texted Plaintiff about a promotional event she had worked, following up several times late at night when Plaintiff did not respond. The Court agrees with Defendants that, based on the record, these allegations on their own would not support a claim for sexual harassment and gender-based hostile work environment. However, courts evaluate these claims based on the “totality of the circumstances” and “consider the factors cumulatively to obtain a realistic view of the work environment.” Stathatos, 2010 WL 2024967, at *5. Here, based on the combination of Plaintiff’s allegations of nonconsensual, inappropriate touching of an intimate body part and her allegations of inappropriate personal questions and excessive late-night texting, there is sufficient evidence to support a claim for a hostile work environment.
“[H]ostile work environment claims present ‘mixed question[s] of law and fact’ that are ‘especially well-suited for jury determination.’ ” Stathatos, 2010 WL 2024967, at *5 (quoting Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 605 (2d Cir.2006)). Here, if a jury were to credit Plaintiff’s testimony, it could reasonably conclude that Harper’s conduct constituted more than petty slights or inconveniences and amounted to “unwanted gender-based conduct” under the NYCHRL, which resulted in inferior terms, conditions, or privileges of employment under the NYSHRL. Bermudez, 783 F. Supp. 2d at 579; see Mihalik, 715 F.3d at 114 (“Under New York law, a defendant is entitled to summary judgment based on the conduct’s triviality only if a reasonable jury could not interpret the alleged [conduct] as anything more than petty slights or trivial inconveniences.”).
[Citations omitted.]
Based on this, the court held that plaintiff’s sexual harassment claims under the NYSHRL and NYCHRL against Defendant Uncle Nearest present triable issues of fact.
The court further explained that plaintiff’s claims, based on the actions of Harper, against Uncle Nearest may proceed under the NYCHRL (N.Y.C. Admin. Code. § 8–107(13)(b)), as well as under the NYSHRL (on the ground that the evidence indicated that defendant “condoned” the harassment).