In Mitura v. Finco Services, Inc. et al, 23-CV-2879 (VEC), 2024 WL 232323 (S.D.N.Y. Jan. 22, 2024), the court, inter alia, denied the defendant’s motion to compel arbitration of plaintiff’s sexual harassment claims.
In sum, the court held that arbitration was barred by the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, 9 U.S.C. §§ 401–02, (“EFAA”).
En route to that determination, the court held that plaintiff plausibly alleged claims of sexual harassment:
In order to survive a Rule 12(b)(6) motion, the complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Johnson, 657 F. Supp. 3d at 551 (citation omitted). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When resolving a motion to dismiss, the Court must assume all well-pleaded facts to be true, “drawing all reasonable inferences in favor of the plaintiff.” Koch v. Christie’s Intern. PLC, 699 F.3d 141, 145 (2d Cir. 2012).
Defendants claim that Plaintiff fails to state a claim for sexual harassment because the Amended Complaint alleges “nothing more than mere sporadic, insensitive comments” that do not suffice to allege adequately a hostile work environment. Defs. Mem. of Law at 11–12. In support of this contention, Defendants cite multiple cases in which courts found allegations of sexual harassment did not meet the “severe and pervasive” standard under Title VII or the standard established by the NYSHRL prior to its amendment in 2019. Id. at 12. Those cases are, however, inapposite because the federal “severe or pervasive” standard of liability does not apply to NYCHRL or the post-amendment NYSHRL claims.4 Under the NYCHRL, a plaintiff must simply show that she was subjected to “unwanted gender-based conduct.” McHenry, 510 F. Supp. 3d at 66 (citation omitted). The plaintiff “need only demonstrate ‘by a preponderance of the evidence that she has been treated less well than other employees because of her gender.’ ” Id. (citing Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 110 (2d Cir. 2013)). Under the NYSHRL, the plaintiff need only show that she was subjected to “inferior terms, conditions or privileges of employment because of the individual’s membership in one or more of the[ ] protected categories.” Mayorga v. Greenberg, No. 22-CV-387, 2023 WL 6307994, at *8 (E.D.N.Y. Sep. 28, 2023).
Accepting the truth of Plaintiff’s allegations, the Amended Complaint alleges that Plaintiff was subjected to weekly, degrading comments and insults, including being called “a single woman,” an “old woman,” and an “old Asian woman with no kids.” Am. Compl. ¶¶ 99, 101. When Plaintiff shared her breast cancer diagnosis with Sergiyenko, he asked her whether she got breast cancer because her “breasts were so large.” Am. Compl. at ¶ 109. On another occasion, when Plaintiff proposed implementing a menstruation leave policy, Sergiyenko asked her, “[d]o you even still menstruate Isabelle?” in an effort to humiliate her. Id. ¶ 103. After commending Sergiyenko’s leadership during a companywide meeting, Sopp allegedly added: “all Isabelle does is laugh and nod her head and agree,” a not-at-all subtle reference to stereotypes of servile Asian women. Id. ¶ 105; Pl. Opp. at 10.
Because the NYCHRL is not a “general civility code,” Plaintiff must allege facts from which the Court can plausibly infer that the unwanted conduct was caused by a discriminatory animus. Rothbein v. City of New York, No. 18-CV-5106, 2019 WL 977878 at *9 (S.D.N.Y. Feb. 28, 2019) (citing Mihalik, 715 F.3d at 110). A discriminatory motive can be shown either by pleading direct evidence of discrimination, including “comments indicating prejudice on account of a protected characteristic,” or by pleading facts showing that comparators outside the Plaintiff’s group were treated better than Plaintiff. Bautista v. PR Gramercy Square Condo., 642 F. Supp. 3d 411, 428 (S.D.N.Y. 2022) (citation omitted). Direct evidence of a discriminatory motive includes comments referring to employees by demeaning stereotypes that “make clear that the employee in question is not truly welcome in the workplace.” Raji v. Societe Generale Americas Secs. LLC, No. 15-CV-1144, 2018 WL 1363760 at *5 (S.D.N.Y. Feb. 28, 2018) (recognizing a discriminatory motive where plaintiff’s superiors repeatedly referred to him by ethnic and homophobic slurs). Nevertheless, comments that a reasonable person would view as only “petty slights and trivial inconveniences” do not give rise to an inference of discriminatory motive. Mihalik, 715 F.3d at 111.
A factfinder could reasonably find that Sergyienko’s weekly disparaging comments, often in front of Plaintiff’s team or other co-workers, reflect a discriminatory motive. Likewise, Sopp’s comment that “all Isabelle does is laugh and nod her head and agree,” could be reasonably interpreted as indicative of a discriminatory animus. See Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 119 (2d Cir. 2004) (citation omitted) (“[S]tereotyped remarks can certainly be evidence that gender played a part in an adverse employment decision.”). Additionally, Sopp’s comment was made directly after commenting on Sergyienko’s leadership, which reasonably gives rise to the inference that Plaintiff was treated “less well” than a white male comparator because of her gender and national origin. See Bautista, 642 F. Supp. 3d at 427.
Taken together, these allegations plausibly state a claim that relates to sexual harassment as required by the EFAA. See, e.g., Sanderson v. Leg Apparel LLC, No. 19-CV-8423, 2020 WL 7342742 at *8 (S.D.N.Y. Dec. 14, 2020) (holding that a supervisor’s three comments about the plaintiff’s perceived sexual orientation made to embarrass him and “diminish [his] success” were enough to plausibly state a NYCHRL hostile work environment claim); Carter v. Verizon, 13-CV-7579, 2015 WL 247344, at *12 (S.D.N.Y. Jan. 20, 2015) (finding a supervisor’s repeated touching of the plaintiff’s shoulders was “potentially gender-charged” and sufficient to state a hostile work environment claim under the NYCHRL).
The court continued to explain that there was a sufficient geographic nexus to New York State and City, noting that “all of the alleged conduct and comments giving rise to the sexual harassment claim occurred while Plaintiff was working in Current’s New York City office” and that plaintiff’s “interim residency in Texas, where she was receiving medical treatment, is irrelevant to the applicability of the NYSHRL and the NYCHRL because all of the alleged sexual harassment occurred while she was working in Current’s New York City office.”