Sexual Harassment Allegations May Proceed, For Now, Under the Continuing Violations Doctrine

In Bermudez v. Bon Secours Charity Health System and Theresa Krell, 2020 WL 104992 (S.D.N.Y. Jan. 9, 2020), the court, inter alia, denied defendants’ motion to dismiss plaintiff’s sexual harassment (hostile work environment) claim asserted under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law.

In this case, plaintiff sued his employer, alleging that he was sexually harassed (by defendant Theresa Krell) and subject to retaliation for rejecting Krell’s sexual advances. Defendants moved to dismiss plaintiff’s claim on statute of limitations grounds; plaintiff responded by relying on the “continuing violations doctrine.”

The court held that, at this stage, the complaint should not be dismissed on that basis (citations omitted):

On two occasions in June 2017, Krell allegedly touched Plaintiff in a sexual manner and made accompanying comments. Defendants argue that these events in or around June 2017 are outside the applicable statute of limitations. “Before an individual may bring a Title VII suit in federal court, the claims forming the basis of such a suit must first be presented in a complaint to the EEOC or the equivalent state agency. In addition, the claimant must make the EEOC filing within 300 days of the alleged discriminatory conduct and, before bringing suit, must receive a ‘Notice of Right to Sue’ letter from the EEOC.” Williams v. N.Y.C. Hous. Auth., 458 F.3d 67, 69 (2d Cir. 2006). The alleged sexual touching occurred at least fifteen months before Plaintiff filed a charge with the EEOC, falling outside the 300-day time limit.

Plaintiff argues that these incidents are part of a continuing violation, part of which occurred within the statute of limitations. “A charge alleging a hostile work environment claim … will not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period.” In making this assessment, the Court “make[s] an individualized assessment of whether incidents and episodes are related.” “In deciding whether incidents of harassment and discrimination are sufficiently related, courts have considered factors such as (1) whether the timely and untimely harassment is of a similar nature, (2) whether the same individuals perpetuated the harassment, (3) the frequency and temporal proximity of the acts, and (5) [sic] whether the employer took any intervening remedial action” .

In the context of a Rule 12(b)(6) motion, I am not able to find that the June 2017 incidents are not sufficiently related to incidents within the limitations period. Thus, I deny Defendant’s motion, except as to deficiency in alleging dates, particularly the dates of Krell’s allegedly harassing comments and the date of Plaintiff’s EEOC complaint. Plaintiff has leave to amend the complaint to remedy the deficiency. Courts have found the existence of a continuing violation where rejected sexual advances and resulting mistreatment occurred partially inside and partially outside the limitations period.

The court also denied defendants’ motion to the extent it sought dismissal of plaintiff’s complaint because the alleged behavior was insufficiently severe or pervasive to sustain a hostile work environment claim. Plaintiff alleged, in addition to unwanted sexual touching, that he was required to endure “rude comments about Plaintiff’s conversations with other women and workplace slights like exclusion from meetings, alterations to Plaintiff’s office space, and unreasonable work requests.” The court declined to rule on this issue at this time, noting that defendants had not yet answered and the parties had not yet conducted any discovery.