In Barcellos v. The City of New York, No. 157998/2018, 2024 WL 2941863 (N.Y. Sup Ct, New York County June 4, 2024), the court, inter alia, denied defendant’s motion for summary judgement on plaintiff’s claims of hostile work environment sexual harassment asserted under the New York State and City Human Rights Laws.
As to the state law, the court explained:
Plaintiff asserts that as a result of the sexual harassment by her supervisor, Slobodyan, she was subjected to a hostile work environment (see Bermudez v City of New York, 783 F Supp 2d 560, 579 [SDNY 2011] [A plaintiff may bring a claim of sexual harassment based on a theory of hostile work environment due to such sexual harassment]). Under the NYSHRL, a hostile work environment exists where the workplace is so permeated with discriminatory intimidation, ridicule, and insult that it is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create a hostile working environment (La Marca-Pagano v Dr. Steven Phillips, P.C., 129 AD3d 918, 919 [2d Dept 2015]). To be actionable, generally the incidents of harassment must be repeated and continuous; isolated acts or occasional episodes will not merit relief (Sims v The Trustees of Columbia Univ. in the City of New York, 2017 NY Slip Op 32331[U], 16 [NY Sup Ct, New York County 2017], affd as mod sub nom. Sims v Trustees of Columbia Univ., 2019 NY Slip Op 00672 [1st Dept 2019]).
In determining whether a hostile work environment exists, a court must consider all circumstances, including: the frequency of the conduct, its severity, whether it was physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interfered with the plaintiff’s work performance (Bilitch v New York City Health & Hosps. Corp., 194 AD3d 999, 1003 [2d Dept 2021]). To prevail, a plaintiff must demonstrate either a single incident that was extraordinarily severe or that a series of incidents were sufficiently continuous and concerted to be deemed pervasive (Benzinger v Lukoil Pan Americas, LLC, 447 F Supp 3d 99, 121 [SDNY 2020]). The conduct must have altered the conditions of the victim’s employment by being subjectively perceived as abusive by the plaintiff and have created an objectively hostile or abusive environment, one that a reasonable person would find to be so (Hernandez v Kaisman, 103 AD3d 106, 111 [1st Dept 2012]). Nevertheless, the plaintiff must establish that the hostile work environment was caused by animus towards her as a result of her membership in her protected class (Kirkland-Hudson v Mount Vernon City School Dist., 665 F Supp 3d 412, 465 [SDNY 2023]).
Defendants’ argument that the alleged conduct does not rise to the level required for establishing a hostile work environment is unavailing. Defendants again rely on the argument that the alleged discriminatory comments or behaviors were not directed at the plaintiff, the plaintiff ascribed motivation to facially neutral comments, and assumed comments were being made about her. Defendants argue that summary judgment is warranted as a plaintiff’s feelings and perceptions of being discriminated against are not evidence of discrimination (Basso v EarthLink, Inc., 157 AD3d 428, 430 [1st Dept 2018]). Defendants assert that as this alleged conduct cannot be said to rise to the level of sufficiently severe or pervasive so as to permeate the workplace and alter the conditions of plaintiff’s employment.
It is undisputed that the plaintiff subjectively perceived the actions of her supervisor to be abusive or hostile. On multiple occasions, plaintiff testified that she found Slobodyan’s behavior to be humiliating, offensive, and embarrassing. Plaintiff also testified that she felt uncomfortable by the conduct, on multiple occasions Slobodyan made her feel uncomfortable, and in her formal EEO complaint, plaintiff wrote that she felt very uncomfortable working with Slobodyan and would like to be transferred. Based on these allegations, a reasonable person could conclude that the conditions of plaintiff’s employment were altered, or this conduct interfered with the plaintiff’s ability to do her work (contra. Chiara v Town of New Castle, 126 AD3d 111, 126 [2d Dept 2015]). Plaintiff has sufficiently demonstrated that she subjectively perceived the environment to be abusive so as to alter the conditions of her employment (Kirkland-Hudson v Mount Vernon City School Dist., 665 F Supp 3d 412, 465 [SDNY 2023]).
Plaintiff has also demonstrated the existence of an issue of fact as to whether she was subjected to an objectively hostile environment based on her gender (Benzinger v Lukoil Pan Americas, LLC, 447 F Supp 3d 99, 120 [SDNY 2020]). The objective hostility of a work environment depends on the totality of the circumstances, including the social context in which the particular behavior occurs and is experienced by its target, and the perspective from which the evidence is assessed is that of a reasonable person in the plaintiff’s position (Hernandez v Kaisman, 103 AD3d 106, 112 [1st Dept 2012]).
Plaintiff asserts that, over the short duration of her employment, she experienced continuous gender hostility by her manager Slobodyan. Specifically, at her 50-H hearing, the plaintiff testified that these incidents by Slobodyan occurred throughout her nine-month employment, at least once a month or about every other week (NYSCEF Doc. No. 40 at 49). In her sworn affidavit in opposition to the defendants’ motion, plaintiff asserts that the sexual comments affected her daily (NYSCEF Doc. No. 69 at 23). Accordingly, the plaintiff has demonstrated that the conduct by her supervisor could have been sufficiently continuous and concerted so as to be deemed as being pervasive (Cowan v City of Mount Vernon, 14-CV-8871[KMK], 2017 WL 1169667, at *4 [SDNY Mar. 28, 2017]).
Again, while some language is unmistakably reflective of the presence of a protected status in the mind of the speaker, in many other cases meaning is context-dependent (Golston-Green v City of New York, 184 AD3d 24, 42 [2d Dept 2020]). Further, case law is clear that when some individuals engage in some harassment that is explicitly discriminatory and some that is not, the entire course of conduct is relevant to a hostile work environment claim (Rasmy v Marriott Intl., Inc., 952 F3d 379, 388 [2d Cir 2020]). Therefore, facially neutral incidents may be included among the totality of the circumstances considered in a hostile work environment claim, so long as a reasonable fact-finder could conclude that they were, in fact, based on gender (Kaytor v Electric Boat Corp., 609 F3d 537, 547 [2d Cir 2010]). This requires some circumstantial or other basis for concluding that incidents sex-neutral on their face were discriminatory, such as evidence that the same individual engaged in multiple acts of harassment, some overtly sexual and some not (Id.).
The plaintiff has provided evidence which, if true, would constitute instances of overt sexual or gender-based behavior, comments, or conduct by her supervisor Slobodyan. Additionally, even if some of the incidents of which plaintiff complains may seem relatively minor, the conduct, if true, could affect her ability to do her job and create an abusive working environment (Kwong v City of New York, 204 AD3d 442, 445 [1st Dept 2022], lv to appeal dismissed, 38 NY3d 1174 [2022]). Considering plaintiff has alleged overt gender-based conduct, and that the alleged facially-neutral conduct may have different interpretations, plaintiff has provided a basis from which a reasonable fact-finder could conclude that the facially-neutral comments were actually based on her gender (see Hornig v Trustees of Columbia Univ. in City of New York, 17 CIV. 3602 [ER], 2022 WL 976267, at *13 [SDNY Mar. 31, 2022] [internal citations omitted] [“Viewing the record as a whole and in the social context in which particular behavior occurred and was experienced by [plaintiff], a reasonable jury could find that [defendants’] actions were demeaning and humiliating on the basis of sex, even if they did not involve explicit or implicit proposals of sexual activity”]).
Additionally, conduct which is not directly targeted at or spoken to an individual, but purposefully taking place in her presence, can nevertheless transform a work environment into a hostile or abusive one (Rasmy v Marriott Intl., Inc., 952 F3d 379, 389 [2d Cir 2020]; Banks v Gen. Motors, LLC, 81 F4th 242, 262 [2d Cir 2023]). As to the alleged comments or gestures that were not made explicitly to the plaintiff, plaintiff testified that they were made within earshot, at a volume level that the plaintiff could hear, or made while Slobodyan was looking at her, or in her direction. Drawing all reasonable inferences in her favor, the plaintiff has provided facts from which a jury could infer that Slobodyan’s conduct was targeted towards her. Accordingly, as the plaintiff has sufficiently raised an issue of fact as to whether she was subjected to an environment that was objectively hostile or abusive, defendants are not entitled to summary judgment on this claim.
Having reached this conclusion as to plaintiff’s claim under the New York State Human Rights Law, it held that plaintiff’s similar claim asserted under the comparatively broader New York City Human Rights Law.