In Grainger v. The City of New York, No. 158264/2019, 2023 WL 2307497 (N.Y. Sup Ct, New York County Feb. 27, 2023), the court denied defendant’s motion for summary judgment on on plaintiff’s (a lesbian woman) claims that she was subject to discrimination based on her sexual orientation.
After summarizing the “black letter” law, the court applied it to the facts:
Although, here, plaintiff does not allege that she suffered an adverse employment action, such as termination, demotion, decrease in salary, loss of title, material loss of benefits, or significantly diminished material responsibilities, such acts are but one of many factors considered by this court. Whether an environment would reasonably be perceived, and is perceived, as hostile or abusive can be determined only by looking at all the circumstances, which may include the frequency of the discriminatory conduct, its severity, and whether it unreasonably interfered with plaintiff’s work performance (see id.). The NYCHRL standard is “whether defendants’ conduct was more than ‘petty slights and trivial inconveniences’ ” (Sarr v Saks Fifth Ave. LLC, 2016 WL 5142473, *3 [Sup Ct, NY County 2016]).
Here, plaintiff’s claims are based on the totality of Lynn Demuria’s actions, as described above, which include statements about plaintiff’s sexual orientation, which were overheard by co-workers. As a result of this disclosure, plaintiff was subject to comments by male co-workers; uncomfortable stares by female co-workers in the locker room; and an altercation with a male co-worker. Importantly, this court cannot ignore the fact that based on these same allegations, the DOC’s own EEOC office sustained plaintiff’s claims of discrimination based on sexual orientation. While it was stated that the matter had been referred to the appropriate unit for review, as plaintiff correctly argues, there is no indication on this record that any remedial action had been taken but, instead, Lynn Demuria had been promoted.
The court concluded that “[v]iewed together, and contrary to defendants’ contentions, this court finds that these were more than petty slights and trivial inconveniences,” warranting denial of the motion.