Sexual Harassment Claim Survives Summary Judgment; “Presidential Affair” Comment, Among Others, Alleged

In Pantor v City of New York, No. 159257/2015, 2019 WL 4390454, 2019 N.Y. Slip Op. 32706(U) (N.Y. Sup Ct, New York County Sep. 13, 2019), the court, inter alia, denied the City’s motion for summary judgment on plaintiff’s sexual harassment/hostile work environment case.

The court summarized plaintiff’s contentions as follows:

[P]laintiff alleges a course of conduct by OA Deputy Chief Actuary John Gibney, including but not limited to, Gibney describing a trip to Key West in which he and his wife patronized a nude establishment and asking plaintiff to perform an internet search of Key West, Florida resulting in plaintiff observing images of scantily clad women; Gibney citing a fitness club flyer advertising exercise classes and gyrating his pelvis and rear to imitate “butt lift exercises”; and Gibney intimating that he could have an affair without consequences akin to a ‘President of the United States’.

As to the hostile work environment / sexual harassment claim, the court explained:

[A] careful review of the record suggests that plaintiff was subjected to a hostile work environment in the form of sexual harassment. Amongst the numerous reported instances of misconduct, the plaintiff and co-worker Smith detail Gibney gyrating his pelvis to imitate butt lifts and intimating that he could have an affair like a “President of the United States.” Further, plaintiff’s claims were substantiated and found credible, first by the plaintiff’s supervisor and OA’s EEO Officer (Susan Flaschenberg) and then, by Citywide EEO and its agency head. While the City asserts that the alleged instances of misconduct are trivial in nature and fall short of the severity threshold required of the NYSHRL and NYCHRL, the court determines that this particular inquiry is appropriate for a jury to consider. Accordingly, summary determination is not warranted as to plaintiff’s sexual harassment claim.

The court did, however, dismiss plaintiff’s retaliation claim.