Hostile Work Environment / Sexual Harassment Claim Under the NYC Human Rights Law Resurrected From Summary Judgment Dismissal

In Suri v. Grey Global Group, Inc., 2018 NY Slip Op 05627 (App. Div. 1st Dept. August 2, 2018), the Appellate Division, First Department, modified a lower court decision, finding that summary judgment was improperly granted to defendant on plaintiff’s sexual harassment claim under the NYC Human Rights Law.[1]It nonetheless agreed that the lower court properly dismissed her discriminatory termination claims.

Specifically, it held that the lower court “erred in dismissing Suri’s claim that she was discriminated against because she rebuffed the sexual advance of Pasquale Cirullo, her immediate supervisor.” Plaintiff “offers evidence that after this alleged incident Cirullo’s behavior toward her turned from affable to malignant, and her workplace became a hostile environment.” This evidence, held the court, “is sufficient to create a triable issue of fact concerning her gender discrimination claim under the City Human Rights Law.”

In reaching its conclusion, the court cautions against rigid parsing of claims brought pursuant to the NYCHRL:

In our view, the dissent’s approach does not serve the broad remedial purpose of the City Human Rights Law. The dissent errs in parsing Suri’s third cause of action into two claims: hostile work environment and sexual harassment, and then separately analyzing each claim as if they were unrelated. The dissent concludes that Cirullo’s and Suri’s coworkers’ alleged mistreatment of her over an 18-month period far exceeded “petty slights.” Nevertheless, the hostile work environment claim fails, the dissent concludes, because there is no evidence that the mistreatment was sexually motivated. In doing so, the dissent disregards Cirullo’s alleged sexual overture (which is analyzed separately) and the temporal proximity between the alleged overture and the alleged 18-month period of mistreatment.

The dissent separately analyzes Cirullo’s alleged overture as a sexual harassment claim, rejecting Suri’s argument that it should be considered in connection with the 18-month period of mistreatment that followed. The dissent concludes that unlike the behavior over the 18-month period, the two compliments and the thigh squeeze amounted to nothing more than “petty slights.” This conclusion is built upon the dissent’s finding that Suri did not produce “some evidence” sufficient to raise an issue of fact as to whether Cirullo suggested a sexual relationship. In doing so, however, the dissent discounts Suri’s own testimony.

The dissent erroneously rejects Suri’s argument that her claim should be viewed holistically, finding that to do so improperly conflates or resurrects Suri’s claims. The City Human Rights Law speaks to unequal treatment and does not distinguish between sexual harassment and hostile work environment. It contains no prohibition on conflating claims [FN4]. Rather the “overall context in which [the challenged conduct occurs] cannot be ignored” (Hernandez, 103 AD3d at 115).

Viewing the claim holistically, as we must, defendants are not entitled to summary judgment under the City Human Rights Law. The jury must decide whether Cirullo made a sexual overture, and whether Cirullo created a hostile work environment because Suri rebuffed that overture [FN5]. Sexual advances are not always made explicitly. The absence of evidence of a [*5]supervisor’s direct pressure for sexual favors as a condition of employment does not negate indirect pressure or doom the claim (see Gallagher v Delaney, 139 F3d 338, 346 [2d Cir 1998] [jury must decide whether the plaintiff experienced a hostile work environment in violation of federal and state law where the plaintiff’s supervisor never directly asked her to engage in sexual relations and never specifically conditioned her employment on accepting his gifts, offers, and signs of affection]).

Admittedly, that Cirullo did not expressly demand sex or engage in sexually charged conversations makes the facts of this case more equivocal than those of some of our precedents. However, “[i]t is not the province of the court itself to decide what inferences should be drawn . . .; if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper” (Vivenzio v City of Syracuse, 611 F3d 98, 106 [2d Cir 2010] [internal quotation marks omitted]).

It is a jury’s function to determine what happened between Cirullo and Suri, and whether it amounted to gender discrimination. If it credits plaintiff’s account of two “compliments” followed within approximately one week by her supervisor’s palm on her thigh, and her description of how her treatment at the workplace deteriorated in the wake of these incidents, then a jury could find that such behavior did not constitute “petty slights or trivial inconveniences.”

The court also determined that the burden-shifting framework applicable to plaintiff’s wrongful termination and failure-to-promote claims did “not apply to Suri’s claim that Cirullo tacitly sought sexual favors from her, and treated her as a pariah for the next 18 months after she rebuffed him.”

1 It nonetheless agreed that the lower court properly dismissed her discriminatory termination claims.
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