In Kaplan v. New York City Dept. of Health & Mental Hygiene, 2016 NY Slip Op 06063 (App. Div. 2nd Dept. Sept. 21, 2016), the court reversed a CPLR 3211(a)(7) dismissal (for failure to state a claim) of plaintiff’s claims of sexual harassment and retaliation.
This decision provides helpful guidance on who has what burden of proof on a pre-answer motion to dismiss in a NYCHRL sexual harassment case.
Here are the facts, as summarized by the court:
The plaintiff was employed by the defendant New York City Department of Health and Mental Hygiene (hereinafter NYCHMH) as a temporary worker. She alleged in her complaint that during a training session with another female employee, at which her supervisor was present, her supervisor rubbed his hand back and forth over his groin and inner thigh while making “grunting noises of a sexual nature.” The plaintiff alleged that this conduct constituted sexual harassment in violation of both the New York State Human Rights Law[] and the New York City Human Rights Law []. She further alleged that after she notified NYCHMH of her intent to sue to assert her rights under applicable law, her employment was terminated in retaliation.
The lower court dismissed plaintiff’s complaint, finding “that Plaintiff was not treated differently because of her sex since she was simply present while Defendant Shapsis allegedly engaged in conduct that Plaintiff perceived as masturbatory” and that his conduct was “nothing more than a trivial inconvenience.”
The Second Department disagreed:
The Supreme Court erred in granting those branches of the defendants’ motion which were to dismiss the cause of action alleging sexual harassment pursuant to the NYCHRL for failing to state a cause of action (see CPLR 3211[a][7]). Affording the complaint a liberal construction and accepting all facts as alleged in the complaint to be true, and according the plaintiff the benefit of every favorable inference, the plaintiff stated a cause of action alleging sexual harassment pursuant to the NYCHRL. The court erred in determining that the subject cause of action must be dismissed because the plaintiff failed to show that the behavior of her supervisor constituted more than a petty slight or trivial inconvenience. The plaintiff does not have this burden. Rather, a contention that the behavior was a petty slight or trivial inconvenience constitutes an affirmative defense (see Williams v New York City Hous. Auth., 61 AD3d 62, 80), which should be raised in the defendants’ answer, and does not lend itself to a pre-answer motion to dismiss. A motion to dismiss merely addresses the adequacy of the pleading, and does not reach the substantive merits of a party’s cause of action. Therefore, whether the pleading will later survive a motion for summary judgment, or whether the party will ultimately prevail on the claims, is not relevant on a pre-discovery motion to dismiss. [Emphasis added.]
The court also held that the lower court erred in dismissing plaintiff’s retaliation causes of action, where “plaintiff alleged in the complaint that her employment was terminated approximately two weeks after she informed NYCHMH of her claims and advised it of her intent to sue.”