Gender Discrimination, But Not Hostile Work Environment and Retaliation Claims, Survive Summary Judgment

In Dall v. St. Catherine of Siena Medical Center, the Eastern District of New York denied defendant’s motion for summary judgment as to plaintiff’s gender discrimination claim, but granted it as to his hostile work environment and retaliation claims.

Plaintiff (who is male) resigned after a female co-worker (Birmingham) filed an internal complaint of sexual harassment against him.  Her claim arose from plaintiff’s taking a picture of plaintiff’s “ass” at a company holiday party, which he then allegedly circulated.

Shortly thereafter, plaintiff filed an internal sexual harassment claim against her, based on the fact that she allegedly “regularly acted in a sexually explicit manner at work”; namely, that she (for example) “told sexually explicit stories, visited explicit websites on work computers, showed employees a drawing of her vagina, described her boyfriend’s genitalia, brought a chocolate penis to work, openly discussed her personal sex toys, and regularly told co-workers her lips were made for blow jobs.”

1.      Gender Discrimination

Plaintiff claimed that he was treated differently, and constructively terminated, because of his gender.  The court agreed.

Initially, the court found that plaintiff presented enough evidence to create an issue of fact as to whether he suffered an “adverse employment action” in the form of a “constructive discharge”, which is “functionally the same as an actual termination.”  Defendant argued that plaintiff did not suffer an adverse action “because he resigned rather than wait for the [company] to determine the appropriate disciplinary action to be taken against him.”  Plaintiff, however, presented evidence that defendant would have fired him if he did not resign, a fact which implies constructive discharge.

The court also rejected defendant’s argument that the availability of grievance procedures under plaintiff’s collective bargaining agreement precluded a finding of constructive discharge.

It held that plaintiff could have reasonably concluded that “if he waited to be terminated, the available grievance procedures would not have impacted the outcome, since the relevant department heads and human resources were the ones taking action against him and applying pressure to others to submit statements against Plaintiff.”

Next, the court held that plaintiff presented enough evidence to establish an “inference of discrimination”, which “can be raised by showing that an employer treated an employee less favorably than a similarly situated employee outside his protected group.”  Employees are “similarly situated” if they are “(1) subject to the same performance evaluation and discipline standards and (2) engaged in comparable conduct.”

Plaintiff presented enough evidence to show that he and his female co-worker were “similarly situated”, despite the fact that they did not have identical jobs or supervisors:

Although Plaintiff and Birmingham held different jobs and were supervised by different individuals, they worked at the Medical Center, in the same department, and were subject to the same rules and regulations promulgated in Defendant’s Sexual Harassment Policy. … By its terms, the Sexual Harassment Policy applies to all employees, and Defendant has not argued, nor is there any evidence to suggest, that the policy was applied more stringently to MRI technicians than registered nurses. … Although Plaintiff and Birmingham reported to different supervisors, both were investigated for violations of this universally applicable policy, not for “supervisor-specific” violations. … Moreover, they were both investigated by [the same person]. Therefore, viewing the facts in the light most favorable to Plaintiff, it appears that Plaintiff was not subjected to different “workplace standards” than Birmingham and that they were similarly situated in all material respects.

The court further held that the two engaged in comparable sexually inappropriate conduct – and that the relative egregiousness of their respective acts presented a jury question – and that plaintiff was constructively discharged while his female co-worker was not disciplined.

The court therefore held that plaintiff presented sufficient evidence to demonstrate that there are genuine issues of material fact as to the existence of a prima facie case.

“Once a prima facie case of gender discrimination has been established, a presumption of discrimination arises, and Defendant must articulate a legitimate, non-discriminatory reason for the employment action.”  Here, defendant did so by arguing “that Plaintiff was not terminated, but was facing yet-to-be-determined discipline for his violation of the company’s sexual harassment policies.”

On the issue of pretext,

To avoid summary judgment, plaintiff must offer evidence from which a reasonable jury could conclude … that gender discrimination played a role in the adverse action taken by Defendant. …  A plaintiff is not required to show that the employer’s proffered reasons were false or           played no role in the employment decision, but only that they were not the only reasons and that the prohibited factor was at least one of the motivating factors. … At the pretext stage, a court may re-consider evidence presented to find an inference of discrimination at the prima facie stage. …

A showing that similarly situated employees belonging to a different protected group received more favorable treatment can also serve as evidence that the employer’s proffered legitimate, non-discriminatory reason for the adverse job action was a pretext for … discrimination.

Defendant claimed that it was entitled to summary judgment because plaintiff “engaged in more egregious conduct” than his female co-worker.  The court held, however, that the relative egregiousness of each person’s conduct presented an issue of fact for the jury.

After evaluating the arguments and evidence, the court concluded:

Plaintiff has presented evidence that both he and Birmingham violated Defendant’s Sexual Harassment Policy and filed sexual harassment complaints, and that Defendant conducted an investigation, after which Birmingham suffered no disciplinary action, while Plaintiff was constructively discharged. Reviewing the evidence in the light most favorable to Plaintiff, the Court finds that Plaintiff has presented disputed issues of fact such that a reasonable jury could conclude that Plaintiff was subjected to disparate disciplinary treatment by Defendant on the basis of his gender.

2.      Hostile Work Environment

The court granted defendant’s motion for summary judgment on plaintiff’s hostile work environment claim.

In order to succeed on this claim, plaintiff was required to

produce evidence that the complained of conduct (1) is objectively severe or pervasive—that is, creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff’s sex, or another protected characteristic.

Plaintiff did not do so:

Plaintiff has presented evidence that co-workers in the radiology department, specifically Birmingham and Hawkins, spoke frequently about their sex lives and showed explicit photographs in the workplace, creating an uncomfortable and inappropriate work environment. However, Plaintiff has not established that the sexual conduct or the inappropriateness of the environment was gender-based. …

Plaintiff asserts that he was uncomfortable during these inappropriate conversations, but he admits that he engaged in some the sexual discussions and participated in some of the inappropriate conduct. … He does not allege that the sexual comments were directed to, or personally insulting to him in any way or to males in particular, nor does he demonstrate that they were obviously intended to intimidate, ridicule, or demean him on account of his gender or any other protected characteristic.

Plaintiff testified that Birmingham’s conduct was directed at both men and women, and that “a lot of people” found her conduct offensive. … For example, Plaintiff has provided evidence that Susan Horn, a female nurse, found Birmingham’s alleged actions made the work environment “uncomfortable.” …

Obscene language or gestures and the occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers do not amount to a hostile work environment.

The court therefore concluded that “Plaintiff’s contention that the radiology department was a sexually charged and inappropriate workplace for all employees, both male and female, is simply not actionable.”

3.      Retaliation

Plaintiff alleged that he was terminated in retaliation for filing a complaint against his female co-worker for sexual harassment.

The court held that plaintiff presented sufficient evidence to establish a prima facie case, i.e., that: (1) plaintiff engaged in “protected activity”, namely, filing a formal complaint of sexual harassment; (2) defendant knew that he filed this complaint; (3) plaintiff suffered an “adverse employment action” (his constructive discharge); and (4) plaintiff established a “causal connection between his protected activity and his termination”, particularly in light of the temporal proximity (two days) between his constructive discharge and the filing of his complaint.

The burden then shifted to defendant to show a legitimate reason for plaintiff’s termination.  It did so by arguing that plaintiff “was not terminated, but was facing yet-to-be-determined discipline for his violation of the company’s sexual harassment policies.”

The burden then shifted back to plaintiff to show pretext, which required him to “show that retaliation was a but-for cause of the adverse employment action”, i.e., that “but for his sexual harassment complaint, he would not have been terminated.”

The court applied the “but for” causation standard recently announced by the U.S. Supreme Court in Univ. of Texas Sw. Med. Ctr. v. Nassar to both plaintiff’s Title VII and New York State Human Rights Law claims (finding that it was appropriate to do so because of the statutes’ use of the same language, courts’ identical evaluation of retaliation claims under both statutes, and the lack of any specific guidance from New York courts or the Second Circuit on the issue).

Plaintiff failed to carry his burden under this standard:

Although Plaintiff has established a prima facie case of retaliation, Plaintiff cannot prove that but for his sexual harassment complaint, he would not have been terminated. …

Although Plaintiff’s termination occurred two days after he filed his sexual harassment complaint, that alone cannot sustain his retaliation claim. Even under the previous lesser “motivating factor” standard, “temporal proximity—while enough to support a prima facie case—[was] insufficient to establish pretext. … In order to establish but-for causation, Plaintiff would have to prove that his termination would not have occurred in the absence of a retaliatory motive.

Defendant has established that it perceived Plaintiff as having violated its Sexual Harassment Policy, and intimidating Union members into filing statements in support of his complaint. The terms of Defendant’s Sexual Harassment Policy are clear—any violation may result in disciplinary actions, including discharge. Defendant has also demonstrated that Plaintiff was facing discipline in response to his own conduct, not his sexual harassment complaint.

Taking the evidence in the light most favorable to Plaintiff, a reasonable jury could conclude that Plaintiff’s termination was discriminatory, since Defendant applied its Sexual Harassment Policy to Plaintiff differently than Birmingham. However, based on the evidence in the record, a reasonable jury could not conclude that had Plaintiff not filed a sexual harassment complaint against Birmingham, he would not have been terminated after Defendant’s investigation into Birmingham’s complaint of sexual harassment against Plaintiff.

The court therefore granted summary judgment to defendant on plaintiff’s retaliation claims.

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