In Mykytyn v. Hannaford Bros. Co., No. 15-01427, 2016 WL 3638182 (N.Y. App. Div. 4th Dept. July 8, 2016), the court reinstated several of plaintiff’s claims, including his co-worker-based sexual harassment/hostile work environment claim.
The facts, as summarized by the court:
Plaintiff commenced this action seeking damages for, inter alia, employment discrimination pursuant to the New York State Human Rights Law (Executive Law § 290 et seq.) and Title VII of the Civil Rights Act of 1964 ( [Title VII] 42 USC § 2000e et seq.) by his employer, defendant Hannaford Bros. Co., doing business as Hannaford Supermarkets (Hannaford), and defendants-coemployees David Rosati and Bob Schneider. Plaintiff’s second amended complaint alleges that while employed by Hannaford in the meat department he was subjected to a course of sexual harassment directed at him by Schneider that included calling plaintiff sexy; stating that plaintiff wore too much clothing for Schneider’s liking; making sexually suggestive noises directed at plaintiff; engaging in acts of physical intimidation; belittling plaintiff when he needed to use the restroom and making patronizing comments about plaintiff’s “wee wee”; following plaintiff into the bathroom to intimidate him; intentionally working in close quarters so that his buttocks would rub against plaintiff; making sexually suggestive gestures and comments with respect to meat products directed at plaintiff; and carving meat products into phallic shapes and leaving them for plaintiff to finish processing. Plaintiff further alleged that he complained to, inter alia, Rosati, the meat department manager, about Schneider’s conduct, but Rosati took no action and failed to report plaintiff’s complaints to upper management at Hannaford.
Applying the law to the facts, the court concluded:
We agree with plaintiff on his cross appeal that the court erred in granting that part of the motion seeking dismissal of plaintiff’s eighth and twelfth causes of action asserting against Hannaford claims premised on hostile work environment under the Human Rights Law (see Executive Law § 296[1][a] ) and Title VII. We note that plaintiff does not contend that Schneider was plaintiff’s supervisor, and Hannaford concedes that he was not. Thus, it is clear that plaintiff is not asserting claims of hostile work environment under a supervisor-based strict liability theory (see Vance v. Ball State University, ––– U.S. ––––, ––––, 133 S Ct 2434, 2448), but instead under a negligence theory. To establish that an employer was negligent in the context of a claim of hostile work environment, a plaintiff “must demonstrate that [his] employer ‘failed to provide a reasonable avenue for complaint’ or that ‘it knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action’ “ (Duch v. Jakubek, 588 F3d 757, 762). Although we agree with defendants that they established on their motion that Hannaford had a reasonable avenue for complaint in place with respect to sexual harassment in the workplace, their submissions raise issues of fact whether plaintiff complained to Rosati, and whether Rosati was “ ‘charged with a duty to inform the company of the harassment.
The court also concluded that plaintiff’s claims for assault, battery, intentional infliction of emotional distress, and aiding-and-abetting violations of the NYS Human Rights Law could proceed.