In Harlow v. Molina Healthcare, Inc., 5:20-CV-1382, 2024 WL 1126736 (N.D.N.Y. March 15, 2024), the court, inter alia, denied defendant’s motion for summary judgment on her hostile work environment sexual harassment claims asserted under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law.
After summarizing the black-letter law, the court applied it to the facts as follows:
Drawing all reasonable inferences in favor of Harlow, she has demonstrated that there are triable issues of fact regarding whether Browne’s conduct was sufficiently severe or pervasive. First, plaintiff’s evidence tends to establish that Browne’s conduct bothered and perhaps traumatized her, causing interference with plaintiff’s working environment, satisfying the subjective prong.
Harlow’s evidence could also satisfy the objective element of this analysis. Plaintiff cites numerous instances in which Browne touched her without her consent. Plaintiff points to evidence that Browne placed her hands on the small of plaintiff’s back, shoulders, leg, and her bare arm. On that final occasion of physical contact, Browne allegedly asked plaintiff “Does your boyfriend touch you like that?” Taken together and viewed in the light most favorable to plaintiff, the non-movant, a reasonable jury could find that Browne’s conduct was sufficiently severe or pervasive.
These same instances of conduct, if credited by a jury, could establish that Browne’s conduct was motivated by plaintiff’s sex. While it is undisputed that Browne’s sexuality is unknown, her attraction towards plaintiff may be inferred from her conduct. Plaintiff points to numerous instances of unwanted touching by Browne. These unwelcome advances were paired with suggestive language that could well be viewed by a factfinder as sexually suggestive. Drawing all reasonable inferences in favor of plaintiff, a reasonable jury could find that Browne’s conduct was motivated by plaintiff’s sex.
Finally, plaintiff argues that Browne’s conduct can be imputed to Molina because Browne’s harassment continued even after she was issued a written warning. Plaintiff points to emails sent to Scott Morrison of Human Resources on February 1, 2019, informing him of Browne’s continued harassment. Defendant did not respond to this complaint or correct Browne’s behavior. Instead, the course of action taken by defendant in response to this news was to terminate plaintiff. Therefore, plaintiff has marshalled sufficient evidence to establish triable issues of fact as to whether Browne’s conduct may be imputed to defendant. Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 107 (2d Cir. 2011) (quotation omitted) (“When harassment is perpetrated by the plaintiff’s coworkers, an employer will be liable if the plaintiff demonstrates that ‘the employer either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it.’ ”).
[Citations omitted.]
Based on this, the court held that defendant’s motion for summary judgment on plaintiff’s sex discrimination claims will be denied.