Hostile Work Environment Sexual Harassment Claim Survives Dismissal Against Former Judge; Acts Dating Back to 2005 May be Considered

In Klymn v. Monroe County Supreme Court et al, 2022 WL 16950048 (W.D.N.Y. Nov. 15, 2022), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s claim of hostile work environment sexual harassment asserted against a former New York State Supreme Court Judge.

As to the sufficiency of the allegations, the court explained:

Lastly, having concluded that Plaintiff’s allegations regarding Rosenbaum’s conduct dating back to 2005 constitutes a single hostile work environment, and that the claim is timely, the Court must determine whether Plaintiff’s allegations are sufficient to state a claim that can survive a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).

Plaintiff’s allegations that, between 2005 and 2009, Rosenbaum repeatedly forced her to perform fellatio on him and raped her on one occasion clearly meets the requisite level of severity to make out a harassment claim. See Redd v. N. Y. Div. of Parole, 678 F.3d 166, 177 (2d Cir. 2012) (“Direct contact with an intimate body part constitutes one of the most severe forms of sexual harassment”); Roches-Bowman v. City of Mount Vernon, No. 21-CV-5572, 2022 WL 3648394, at *5 (S.D.N.Y. Aug. 24, 2022) (“Plaintiff’s alleged sexual assault is, on its own, sufficient to state a claim for hostile work environment”).

Rosenbaum’s argument that “caselaw indicates that the specific allegations pled by the plaintiff do not rise to the level of severity that would create a hostile work environment,” Dkt. 19-2, at 8, is unavailing because it ignores half of the relevant legal standard. The requirement is that “the harassing conduct was ‘severe or pervasive’—not severe and pervasive.” Dillon v. Ned Mgmt., Inc., 85 F. Supp. 3d 639, 655 (E.D.N.Y. 2015) (emphasis in original) (quoting Pa. State Police v. Suders, 542 U.S. 129 (2004)). The standard “is disjunctive.” Id.

As noted above, Plaintiff alleges that, on a daily basis from 2009 to the beginning of 2019, Rosenbaum subjected Plaintiff to unwanted touching and comments. Dkt. ¶¶ 84, 93. The conduct is clearly pervasive. And although Rosenbaum attempts to characterize the comments as “innocuous or casual” and not “related to plaintiff’s gender” (Dkt. 19-2, at 6), a reasonable person could certainly consider them to be sexual in nature, especially in the context of what allegedly occurred earlier, namely, the overtly sexual acts between 2005 and 2009.
Thus, given the frequency and nature of the alleged conduct, the facts alleged in the Amended Complaint are sufficient to state a plausible harassment claim against Rosenbaum. See Reynoso v. All Foods, Inc., 908 F. Supp. 2d 330, 340 (E.D.N.Y. 2012) (employee stated a Title VII harassment claim by alleging that a supervisor leered at her on a daily basis, commented on her buttocks, made inappropriate sexual comments about women in her presence, sat behind her staring at her backside and, on one occasion, forcibly grabbed her from behind, put his arms around her, and pressed his body against her); Horvath v. American Tissue Corp., 210 F. Supp. 2d 189, 194 (E.D.N.Y. 2002) (concluding that sexual harassment occurred when the Defendant “constantly stared at” the Plaintiff’s “breasts, asked her to go for walks, commented about her looks, and on one instance, took” her “hand and kissed it”).

The court did, however, dismiss plaintiff’s “quid pro quo” sexual harassment claim, noting the absence of any allegation in her amended complaint of a tangible employment action resulting from her alleged refusal to further engage in sexual acts with the defendant.

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