In Nelson v. Vigorito, the Appellate Division, Second Department affirmed the denial of summary judgment to defendants on plaintiff’s claim of sexual harassment based on a hostile work environment under the New York State Human Rights Law.
Here are the facts, as summarized by the court:
The plaintiff, a former employee of the defendant Security Auto Sales, Inc., doing business as Security Dodge (hereinafter Security), alleges that the defendant John Vigorito, Sr., who was the majority owner of Security, propositioned her repeatedly in crude and vulgar terms, and touched her inappropriately. The plaintiff alleged that Vigorito’s conduct continued even after the plaintiff told him that his conduct was unwelcome. Despite the plaintiff’s complaint to other employees and managers of Security, and their assurances that an investigation had been or would be conducted, and that her employment would continue, it is alleged that Vigorito indicated by his conduct that he would continue to pursue the plaintiff.
Initially, the court held that the entity defendant “failed to establish, prima facie, that it may not be held responsible for the conduct of its majority owner, Vigorito, since he was indisputably within that class of an employer organization’s officials who may be treated as the organization’s proxy.”
As to plaintiff’s sexual discrimination/hostile work environment and constructive discharge claims, the court held:
[D]efendants failed to establish, prima facie, that the underlying alleged conduct, which allegedly continued over the entire time the plaintiff was employed at Security, did not rise to the level of a hostile work environment. In connection with the cause of action alleging, in effect, that the plaintiff was constructively discharged from employment, the plaintiff, in opposition to the defendants’ prima facie showing of entitlement to judgment as a matter of law, raised a triable issue of fact as to whether Vigorito intentionally created working conditions so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign. Accordingly, the Supreme Court properly denied those branches of the defendants’ motion which were for summary judgment dismissing the causes of action alleging discrimination based on the creation of a hostile work environment and constructive discharge from employment.
The court, however, held that the Supreme Court should have granted the portion of defendants’ motion for summary judgment dismissing plaintiff’s claim for intentional infliction of emotional distress.