In Malik v. American International Group, Inc., the Supreme Court, Queens County denied defendants’ summary judgment motions regarding a number of plaintiff’s claims, including sexual harassment (quid pro quo and hostile work environment), race discrimination, and disability discrimination under the New York State Human Rights Law.
Time Bar and Continuing Violation Doctrine
Defendants argued that plaintiff’s claims were time-barred, because the relevant conduct happened outside the NYSHRL’s 3-year statute of limitations period. Not so, said the court. Under the “continuing violation doctrine”,
if the action is commenced within three years of the last discriminatory act, all prior misconduct, including acts outside of the limitations period, are subject to recovery; provided the discriminatory conduct that occurred within the limitations period was sufficiently similar to the alleged conduct outside the limitations period to justify the conclusion that the actions were part of a discriminatory practice.
The court found an “issue of fact as to whether the defendants’ actions, with respect to all of Malik’s harassment and discrimination claims, are sufficiently similar as to constitute one unlawful employment practice and thus be subject to the Continuing Violation Doctrine”.
“Hostile Work Environment” Sexual Harassment
Plaintiff alleged the following facts in support of her sexual harassment claims:
Malik alleges … that Rothenberg would refer to the size of his penis to her, made comments about a female employee’s breasts, zipped and unzipped his pants when referring to his genitalia, leaned over seated female employees and smelled their hair, purposely dropped files in front of female employees and had the female employee pick up the file so he could check out her body, made sexual advances towards female employees and that he stated that he preferred hiring attractive women. Malik alleges that Nallan engaged in sexually harassing conduct, which included, among other actions, that he would display pornographic pictures in his office, would comment on pornographic magazines within the office, carried a cane in his office that he called the pimp stick and would state that “women ain’t nothing but bitches and hoes [sic],” told Malik that he would beat her with his stick, and told Malik that she should have become a stripper rather than an attorney.
First, defendants argued that AIG could not be held responsible for the actions of plaintiff’s co-worker (Nallan), before he became her supervisor. The court disagreed, finding an issue of fact as to whether Rothenberg (staff counsel to AIG) had knowledge of and ignored the discriminatory conduct, “which would make AIG liable for the conduct of Malik’s non-supervisor co-employees.”
Second, defendants argued that plaintiff’s claims should have been dismissed because she didn’t avail herself of AIG’s complaint procedures. The court disagreed, finding “an issue of fact as to whether it was a reasonable belief that she feared that if she tried to complain in accordance with AIG’s complaint procedures, she would be retaliated against.”
“Quid Pro Quo” Sexual Harassment
The court denied defendants’ motion for summary judgment on plaintiff’s quid pro quo sexual harassment claim. Under that theory,
a plaintiff must show that she was subjected to unwelcome sexual conduct, whether in the form of sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, which is used either explicitly or implicitly as a basis for employment decisions affecting compensation, terms, conditions or privileges of a complainant’s employment.
Here, plaintiff did so:
The allegations in Malik’s complaint and affidavit in opposition to the summary judgment motion include allegations that, if proven, are sufficient to support a claim of quid pro quo sexual harassment, such as Nallan telling Malik, “she could make this all go away,” that Nallan told Malik that if she was nicer he would not write her up or give her negative performance evaluations. Additionally, Malik stated that she refused Nallan’s request to be nicer and make this all go away, and was subsequently issued written warnings, was given multiple cases in violation of her disability, was not given a raise and received poor treatment.
Failure to Accommodate
The court also rejected defendants’ argument on plaintiff’s failure to accommodate claim:
[T]he evidence submitted by the parties was conflicting as to whether the restrictions due to the plaintiff’s disability were properly accommodated. The plaintiff testified that she was sent to courts covering the entire New York area, while the defendants testified that her duties were limited to appearances in Queens and Nassau counties. Additionally, the plaintiff submitted the affidavit of a non-party calendar clerk in the office, who stated that Malik was assigned cases throughout the New York City area. In light of this conflicting testimony, there is an issue of fact as to whether the defendants failed to accommodate Malik’s medical disability.
Plaintiff alleged that she was subjected to race discrimination, vis-a-vis her being Muslim:
Malik also alleges that she was racially harassed by the defendant Nallan. This conduct included stating that all Muslims are terrorists; making anti-Islamic comments; telling Malik she could not wear an American flag pin; when Malik was carrying a bag, he would say to her, “see something, say something”; telling Malik that people in her family drive a taxi cab and own a 7-Eleven; stating that he hated Arabs; and stating that Malik’s medical condition was caused by beatings form her husband because, “that is what men of your race/religion and culture do.”
The court, addressing plaintiff’s race and disability discrimination claims together, found that she submitted enough evidence to raise an issue of fact regarding both claims:
[T]he evidence submitted by Malik includes adverse employment actions including: never receiving a pay increase; sending Malik to various counties across the New York City area; appearing on multiple cases a day and having to simultaneously cover cases in Supreme and Civil Court, with depositions following in the afternoon; having to attend coaching sessions with her supervisor and being issued verbal and written warnings while other employees who were also deficient in the same areas did not have to attend these coaching sessions. These allegations along with the factual allegations concerning statements made to her are sufficient to raise a triable issue of fact on the plaintiff’s racial and disability discrimination causes of action.
Individual Defendant Liability
The court dismissed plaintiff’s claims against office manager Grote, as she “did not have the authority to give an accommodation to the plaintiff” and “no evidence that [she] aided and abetted any disability, racial or sexual discrimination against the plaintiff.” Likewise, the court dismissed plaintiff’s race discrimination claims against defendant Rothenberg, absent any “evidence that [he] participated in any conduct giving rise to racial discrimination.”
However, the court denied Rothenberg’s motion for summary judgment as to plaintiff’s disability discrimination claim, since there was “an issue of fact as to whether Rothenberg took adverse actions against the plaintiff due to her disability.”
It also permitted plaintiff’s disability discrimination claim against defendant Nallan, in light of “issues of fact as to whether Nallan aided and abetted the discrimination by participating in conduct giving rise to the discrimination claim.”
Plaintiff was prohibited from recovering back and front (“forward”) pay, because she was never terminated and continues to collect disability pay. “Furthermore, inasmuch as the plaintiff left work to go out on disability and claims she can not presently work due to her disability, back pay and front pay are not appropriate remedies in this case.”
Also, since plaintiff “received Workers’ Compensation Benefits for disability due to emotional distress stemming from the motor vehicle accident, she is not entitled to a recovery of emotional distress damages to the extent those damages were related to the accident.”
As to emotional distress damages, since three was “an issue of fact as to whether any portion of the damages were not caused by the accident, but rather were due to the conduct of the defendants … plaintiff can only recover emotional distress damages for the portion of her emotional distress that can be proven to be caused by the conduct of the defendants rather than caused by the accident.”