In Andrade v. Cultural Care, Inc., Michael Esposito, and Danielle Esposito, 2023 WL 8622653 (E.D.N.Y. Dec. 13, 2023), the court, inter alia, denied defendants’ motion for summary judgment dismissing plaintiff’s claims of employment discrimination and hostile work environment asserted under the New York State and City Human Rights Laws.
In sum, plaintiff, an au pair, alleges that after moving into the Esposito defendants’ home (where she was placed she discovered a hidden camera with a memory card which, she discovered, contained recordings of plaintiff nude, dressing, or undressing.
As to plaintiff’s claims under the New York State Human Rights Law, the court explained:
Courts “review discrimination claims brought under the NYSHRL according to the same standards that we apply to Title VII discrimination claims.” Pucino v. Verizon Wireless Commc’ns, 618 F.3d 112, 117 n.2 (2d Cir. 2010). To make out a hostile work environment claim under Title VII, a plaintiff must allege facts demonstrating the treatment in question: “(1) is objectively severe or pervasive—that is… creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff’s sex.” Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (internal citation and quotation marks omitted). The “discriminatory intimidation” of the plaintiff must be “sufficiently severe or pervasive to alter the conditions of his or her work environment.” Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 106 (2d Cir. 2011). The severity of discriminatory conduct “has objective and subjective elements: the misconduct shown must be ‘severe or pervasive enough to create an objectively hostile or abusive work environment,’ and the victim must also subjectively perceive that environment to be abusive.” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (internal citation omitted). Plaintiffs may also plead constructive discharge arising out of particularly pronounced hostile work environments. For example, “an employee is constructively discharged when his employer, rather than discharging him directly, intentionally creates a work atmosphere so intolerable that he is forced to quit involuntarily.” Petrosino v. Bell Atlantic, 385 F.3d 210, 229 (2d Cir. 2004).
Plaintiff meets those standards here. Defendant Michael Esposito engaged in an appalling course of conduct by installing a hidden camera above Plaintiff’s bed and recording Plaintiff’s movements in her bedroom—a room where she was frequently nude, dressing, and undressing, and rightly expected privacy. Courts in New York have held similar conduct constitutes a prima facie hostile work environment in violation of the NYSHRL. In Sawicka v. Catena, for example, the New York Appellate Division for the Second Department ruled in favor of female plaintiffs whose boss placed a hidden camera in their workplace restroom. 79 A.D.3d 848, 850 (2d Dep’t 2010) (“The plaintiffs’ claims that they were subjected to a hostile work environment, based on sex, which led to their constructive discharge, were supported by evidence that Catena deliberately made their working conditions so intolerable by installing a video camera in the restroom, that a reasonable person in their position would have felt compelled to resign.”).
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The Espositos attempt to distinguish cases involving hidden cameras in restrooms from the hidden camera placed in Plaintiff’s bedroom. See Indiv. Defs. Opp. at 15-16. However, the Court is unconvinced by these arguments. The actions that take place in a bedroom are comparably intimate to those that occur in a restroom. Plaintiff was often nude or undressing in her bedroom, as were the plaintiffs in Hughes, Sawicka, and Johnson in their workplaces’ restrooms. And, just like the defendants in those cases, Defendant Michael Esposito surreptitiously recorded Plaintiff when she was physically vulnerable and believed she was alone. The Espositos fail to draw any principled distinction between unlawfully surveilling in a restroom versus a bedroom. As such, Plaintiff has made out that her workplace was objectively hostile, and that she subjectively perceived it to be so. After all, Plaintiff immediately brought the smoke detector and SIM card to the police, and she later testified to the mental toll she has experienced following Michael Esposito’s conduct. See Pl. Dep., ECF No. 62-6, at 17:16-18 (“I suffer from depression[,] anxiety and stress”).
Further, Plaintiff has established the hostile work environment created by Michael Esposito’s unlawful surveillance led to her constructive discharge. As the United States Supreme Court has explained, the relevant inquiry “is objective: Did working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign?” Pennsylvania State Police v. Suders, 542 U.S. 129, 141 (2004). Work conditions are “intolerable” if they are so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign. See Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 73 (2d Cir. 2000).
Here, the conditions of Plaintiff’s workplace meet that standard. The Hughes and Sawicka courts determined the defendants in each of those cases made working conditions so intolerable by installing hidden cameras in office restrooms that the plaintiffs were forced to resign. See Hughes, 939 N.Y.S.2d 740 at *6; Sawicka, 79 A.D.3d at 850. Here, too, a reasonable person in Plaintiff’s position would feel compelled to resign upon discovering Defendant Michael Esposito’s severe intrusion of Plaintiff’s privacy. As such, Plaintiff has established both her hostile work environment and constructive discharge claims against the Espositos under NYSHRL.
Having determined that plaintiff’s claims may proceed under the state law, the court held that they may necessarily proceed under the “more protective” New York City Human Rights Law.