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

In Husser v. New York City Dep’t of Educ., No. 12-CV-6095 MKB JO, 2015 WL 5774741 (E.D.N.Y. Sept. 30, 2015), plaintiff alleged that defendants willfully failed to pay her wages equal to those paid to men for equal work, retaliated against her, and subjected her to a hostile work environment.

The court adopted the Magistrate Judge’s Report and Recommendation to deny dismissal of plaintiff’s pay discrimination and retaliation claims, but to dismiss plaintiff’s hostile work environment claim.

Gender/Pay Discrimination

In finding that plaintiff’s claims of unequal pay (under Title VII of the Civil Rights Act of 1964 and the NYS Human Rights Law) survived summary judgment, the court explained:

Like her Equal Pay claims, Husser has shown that she was qualified for the job, paid less than other male comparators for substantially equal work and that the defendants’ decision gives rise to an inference of discrimination. While Husser has not produced evidence that the [Division of School Facilities] intentionally paid her less than any of her comparators because of her gender, she relies on the fact that those employees were paid more than she was, that they were similarly situated, that they are men and that the employer knew about the disparity[.] … Additionally, Husser alleges that [defendant John] Shea had the authority to request raises for members of his staff and that he did so for certain members of his staff, including several male directors, but not Husser. By showing that Shea and [defendant John] O’Connell knowingly failed to redress any discriminatory pay practice, Husser has met her burden to show that a triable issue of fact exists regarding whether the defendants acted with a discriminatory intent.


In permitting her retaliation claim to continue, the court explained:

Husser has adduced evidence that, in the aggregate, could allow a reasonable jury to determine the conditions of her employment following her complaint to Santana and OEEO were made sufficiently adverse to support a retaliation claim. The temporary revocation of Husser’s car privileges, her exclusion from part of an arbitration, and the change in her supervision—resulting in her no longer reporting directly to the DSF CEO, but instead indirectly to him[] —could all suffice, in the aggregate, to persuade a jury that Husser has succeeded in making the fact-intensive, context-specific showing of an adverse employment action. …

Husser informally complained to [DOE’s Executive Director of the Office of Equal Employment Opportunity, Mecca] Santana sometime in the Spring of 2012, but she did not file a formal complaint until July 2012. She claims that the increased scrutiny of her time records, as well as her exclusion from meetings and calls, began that same month. While her allegations are disputed, they suffice to show that the Husser’s formal complaint and the later actions were close enough in time to support an inference that they were causally related. Moreover, after the OEEO issued its report in October 2012—which criticized Shea and noted that Husser’s pay should be higher—Shea was suspended for two weeks. The following month, in November 2012, Husser temporarily lost her company car privilege; two months after that, on January15, 2013, … Husser was, as she hopes to persuade a fact-finder, effectively demoted. A jury could infer from that sequence of events that the defendants retaliated against Husser both for filing a formal complaint to the OEEO and for the official consequences to Shea of that complaint.

Hostile Work Environment

However, and unfortunately for plaintiff, the court dismissed her hostile work environment claims. The court explained that the incidents upon which plaintiff relied to support those claims, despite being “inappropriate and boorish”

are insufficiently severe under [Second Circuit law]. For example, the parties agree that when Shea mouthed the phrase “blow me,” he was not making a sexual advance, but rather intended to be sarcastic. Indeed, Husser has not suggested, and nothing indicates, that any of the incidents were sexual advances or threats. Moreover, Husser acknowledged that some of the conduct at issue was not necessarily directed at her: she was never directly called a “girl” nor was Shea’s changing in the conference room directed at her. Further, while certain facts are in dispute, the record is clear that Husser participated in the sexual banter along with her supervisors. See Stodola Decl., Ex. H (showing an email chain between Shea and Husser where Shea says “ho ho ho” and Husser responds, “who you calling a ho?”). Further, several of the cited incidents could also reasonably be interpreted to be gender-neutral and not necessarily directed at Husser because of her gender—Husser acknowledges that Shea directed some of the comments at issue not just to herself, but also to men.

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