In Puppo v. Bluemercury, Inc., No. 152105/2021, 2023 WL 6812153 (N.Y. Sup Ct, New York County Oct. 13, 2023), the court, inter alia, denied defendants’ motion to dismiss plaintiff’s claims of constructive discharge and hostile work environment sexual harassment.
Among plaintiff’s allegations were that plaintiff (a sales associate) inadvertently sent her then-manager (individual defendant Morta) an intimate image of herself that “depicted her partially exposed buttocks covered only by an undergarment.”
The court proceeded to summarize plaintiff’s allegations as follows:
Plaintiff alleges that Morta, without her permission or consent, “distributed the [i]ntimate [i]mage in February 2020, with the intent to cause substantial emotional harm to [p]laintiff, to at least one other employee, [defendant] Norman” who had become plaintiff’s store manager at the time. Plaintiff alleges that following the unauthorized disclosure of the intimate image, plaintiff was “ridiculed in front of other colleagues by Norman on multiple occasions even though [plaintiff] advised Norman that she should not discuss it and it made her uncomfortable.”
Plaintiff further alleges that defendant Norman “began a campaign of gender discrimination, sexual harassment and retaliation.” In support of this claim, plaintiff alleges that defendant Norman texted plaintiff to ask if her boyfriend was “deep inside” her and, on another occasion, texted plaintiff expressing hope that her boyfriend was “very deep inside” her. Defendant Norman allegedly also texted plaintiff to suggest that plaintiff purchase her a birthday gift.
Plaintiff alleges that upon her refusal to engage with defendant Norman, defendant Norman retaliated by writing plaintiff up. Plaintiff adds that she “was forced to resign because the company condoned [defendant] Norman’s retaliation.”
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In finding the plaintiff sufficiently alleged hostile work environment and constructive discharge, the court explained:
When accepted as true and viewed most favorably, Norman’s alleged conduct is sufficient to establish a claim for hostile work environment and constructive discharge. Plaintiff’s allegations that Norman ridiculed her in front of her colleague about an intimate image “on multiple occasions,” despite plaintiff stating she was uncomfortable, demonstrates facts to support a claim that the workplace was permeated with “insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Plaintiff asserts that defendant Norman’s ridicule was the result of an improperly disseminated image depicting an intimate image of plaintiff’s body, which is pervasive on its face. Additionally, the allegations that plaintiff received text messages from her supervisor, Norman, asking if plaintiff’s boyfriend was “deep inside” her, is offensive conduct that is pervasive under the NYSHRL.
In assessing the totality of the circumstances, the ridicule plaintiff allegedly endured related to the intimate image, coupled with the pervasive and sexual text messages, sufficiently state a cause of action for a hostile workplace. Plaintiff claims that defendant Norman’s conduct caused plaintiff to suffer adverse employment consequences and, as a result, plaintiff was forced to resign from her employment.
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It reached the opposite conclusion, however, with respect to defendant Morta, noting that “[a]t the time that Norman allegedly ridiculed plaintiff and sent her sexual text messages, Morta was no longer plaintiff’s supervisor” and that “Morta’s act of distributing the image to Norman, does not on its face demonstrate facts to show that a workplace was permeated with insult that is sufficiently severe or pervasive to alter the conditions of Puppo’s employment.” [Internal quotation marks omitted.]