In a recent case, Dikambi v. City University of New York et al, 19-CV-9937 (RA), 2023 WL 5713716 (S.D.N.Y. Sept. 5, 2023), the court, inter alia, denied defendant’s motion for summary judgement on plaintiff’s hostile work environment sexual harassment claim asserted under the New York City Human Rights Law.
From the decision:
There is sufficient evidence in the record to lead a reasonable juror to conclude that Adams “treated [Dikambi] less well than other employees because” she is a woman. Barounis, 2012 WL 6194190, at *9 (citation omitted). Dikambi testified that after they met in 2006, Adams “frequently” made sexual advances toward her, including unwanted touching and sexual comments. Dikambi Tr. at 117–18. Adams does acknowledge that he and Dikambi had a sexual encounter at his apartment in 2014 when she sought his assistance with an academic paper, but he insists the encounter was consensual. Adams 56.1 ¶¶ 71–72; Adams Tr. at 53–54. Dikambi testified that during their sexual encounter she said “I don’t want to” and “I want to go,” before he “said [she] could leave.” Dikambi Tr. at 86, 90 96–98, 109. Adams also acknowledges that he pulled Dikambi’s hair at an event in 2016 and said, “some of us still have our natural hair.” Adams 56.1 ¶ 31. In addition, according to Dikambi, after being transferred to the Africana Studies Department in January 2017 where she worked directly with Adams, he made frequent comments about her appearance and weight. Dikambi Tr. at 120, 124, 127–129; Pl. 56.1 Resp. (Adams) ¶ 163.
“If a jury were to credit [Dikambi’s] testimony,” it could reasonably conclude that Adams’ behavior “constituted more than ‘petty slights or trivial inconveniences,’ and that it was sexually-charged conduct” that subjected her to a different set of employment conditions because of her gender. Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 113 (2d Cir. 2013) (citation omitted) (reversing district court’s finding of summary judgment for employer where plaintiff presented evidence that employees “made lascivious comments about women’s outfits and bodies” and that she was subjected to “unwanted sexual attention”).
Adams argues that summary judgment is warranted in part because his teasing and flirtation with Dikambi was mutual, testifying in his deposition, for example, that Dikambi herself engaged in sexual banter and commented on Adams’ appearance, calling him “cute” and telling him she “liked how [his] body looked.” Adams 56.1 ¶ 25; Adams Tr. at 64. Adams also insists that that their sexual encounter in December 2014 was consensual. Id. at 67. But as the Second Circuit has made clear, the “[e]valuation of ambiguous acts is a task for the jury, not for the judge on summary judgment.” Redd v. New York Div. of Parole, 678 F.3d 166, 174 (2d Cir. 2012) (citation omitted) (reversing district court’s grant of summary judgment on Title VII sexual harassment claims). Dikambi has testified that Adams’ sexual advances were unwanted, and that his comments about her hair and her appearance were demeaning.
The court concluded that “in light of the numerous disputed questions of fact about Adams’ conduct and the nature of his relationship with Dikambi beginning in 2006, and given that the existence of a hostile work environment presents mixed questions of law and fact that are especially well-suited for jury determination,” summary judgment was not warranted.