In Comerford v. Village of North Syracuse et al, 2021 WL 950974 (N.D.N.Y. March 12, 2021), the court, inter alia, denied defendants’ motion for summary judgment on plaintiff’s gender-based hostile work environment claim.
As to the “objectively severe or pervasive” prong of the analysis, the court explained:
Plaintiff provided evidence of the following treatment and conduct while working at the NSPD: Viewed in the light most favorable to Plaintiff, the evidence supporting Plaintiff’s hostile work environment claim suggests a pattern of gender-based harassment and hostility perpetrated by DeGirolamo and, at times, tolerated by Chief Crowell, in which (1) DeGirolamo, on numerous occasions, referred to Ashley Smith, the only other female officer at the NSPD as ‘bitch’ and ‘cunt’; (2) DeGirolamo referred to women generally as ‘bitches,’ ‘broads,’ and ‘cunts’ in Plaintiff’s presence and the presence of other officers, during her time as a sergeant (pre-September 2016) and when she was returned to officer status (September 2016 to June 2017); (3) Chief Crowell on occasion laughed at DeGirolamo’s disparaging remarks; (4) DeGirolamo ignored Plaintiff’s instruction to stop using the offensive language despite being her subordinate; (5) Chief Crowell refused to intervene or admonish DeGirolamo despite witnessing him ignore Plaintiff’s instruction; (6) DeGirolamo persistently asked Plaintiff about her sexual activities even after she told him it was “none of his business,” ; (7) despite Plaintiff’s repeated requests to close the bathroom door, DeGirolamo “peed with the door open plenty of times”; (8) beginning in or about July 2016, Chief Crowell referred to Plaintiff as “she” or “her” rather than by her name or rank, (9) on or about December 22, 2016, Sergeant DeGirolamo rejected a memorandum Plaintiff had prepared at his direction and “screamed at [Plaintiff] at the top of his lungs and told [her] to write another memorandum recounting turn-by-turn where [she] had gone” and that she “was not allowed to leave until [she] had done so”; (10) in May and June 2017, Sergeant DeGirolamo began leaving “the toilet seat down” in the unisex bathroom and left “drops of urine on the seat” “when [Plaintiff] needed to use it”; and (11) after Plaintiff was reinstated to Sergeant in June 2017, her name was never returned to her door, her title was not reinstated in the computer system, she was required to handle calls normally handled by junior officers and she was often left to respond on patrol alone.
None of the above-listed incidents, considered in isolation, possess characteristics that would allow a factfinder to conclude it was so “severe or pervasive [as] to alter the conditions of the victim’s employment and create an abusive working environment.” Viewed cumulatively and in the light most favorable to Plaintiff, however, the alleged use of the derogatory gender-based words “on numerous occasions” to refer to one of the two female officers at the NSPD and women generally, the tolerance and tacit approval of this conduct by Chief Crowell, together with DeGirolamo’s persistent questions about Plaintiff’s sexual activities, screaming at her “at the top of his lungs” regarding her preparation of a memorandum, DeGirolamo’s use of the unisex bathroom with the door open, and leaving urine on the toilet seat knowing women used the same bathroom, and Chief Crowell’s reference to Plaintiff as “she” or “her” while referring to her male colleagues by the names or rank, may constitute “a steady barrage of opprobrious” conduct demeaning to women sufficiently pervasive to create a hostile work environment. Indeed, “the pervasiveness determination is the sort of issue that is often not susceptible of summary resolution.
[Citations omitted; cleaned up.]
The court also held that plaintiff demonstrated that she “subjectively experienced a hostile work environment”, based on her testimony that she “felt like [she] was going to throw up oftentimes going to work” and she knew it was work-related stress and abuse that was causing her to feel sick.