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 judgment on plaintiff’s claim of disparate treatment under the New York City Human Rights Law.[1]The court addressed plaintiff’s “hostile work environment” claim separately; I addressed that aspect of the court’s decision here.
From the decision:
Plaintiff is also asserting a claim of discrimination in violation of the NYCHRL, alleging that she was subjected to disparate treatment based on her gender. Additionally, plaintiff is allegedly asserting a separate claim for sexual harassment. However, plaintiff’s NYCHRL claims of gender discrimination and sexual harassment are coextensive (see Williams v New York City Hous. Auth., 61 AD3d 62, 75 [1st Dept 2009]; Clarke v Intercontinental Hotels Group, PLC, 12 CIV. 2671 JPO, 2013 WL 2358596, at *11 [SDNY May 30, 2013] [“Under the NYCHRL, there are not separate standards for discrimination and harassment claims; rather there is only the provision of the law that proscribes imposing different terms, conditions and privileges of employment based on, inter alia, gender”]).
Plaintiff alleges that she was treated differently than a male colleague who did not endure the same obstacles as her, and that she was not afforded the equal opportunity to advance as her male colleague was. Contrary to a claim under the NYSHRL, under the NYCHRL, a plaintiff need not demonstrate that an adverse action was materially adverse but only that she was treated differently or worse than other employees (Harrington v City of New York, 157 AD3d 582, 584 [1st Dept 2018]). Plaintiff argues she was subjected to differential treatment in the terms of her employment as she was denied the opportunities provided to male workers by having her work diverted to male colleagues, she was excluded from internal and external meetings and emails, she was not included as an author or even recipient of the DCAS Energy Management citywide email, there was a diminution of her tasks and roles, and her employment was terminated.
However, defendants argue that plaintiff cannot show these actions were taken because of her gender as plaintiff has failed to offer evidence of a similarly situated employee that was treated more favorably. Even under the NYCHRL, a plaintiff must still link the employment actions to a discriminatory motivation (Kops v PPM Am., Inc., 15 CIV. 1584 [GBD], 2016 WL 7188793, at *5 [SDNY Dec. 5, 2016]). A plaintiff may establish an inference of discrimination by showing that a member of the protected class was treated differently than a worker who was not a member of that protected class (Day v City of New York, 15CIV4399GBDHBP, 2015 WL 10530081, at *13 [SDNY Nov. 30, 2015], report and recommendation adopted, 2016 Fair Empl Prac Cas [BNA] 87692). For differential treatment to suffice to show an inference of discrimination, a comparator must be similarly situated in all material respects to the plaintiff (LeBlanc v United Parcel Serv., 29 AD Cases 1628 [SDNY Apr. 11, 2014]; Rothbein v City of New York, 18-CV-5106 [VEC], 2019 WL 977878, at *10 [SDNY Feb. 28, 2019]).
Plaintiff asserts that a male colleague, who worked within the same team and previously held her position title, was not subjected to the same conduct as her. However, defendants assert that the plaintiff and male colleague were not similarly situated in all material respects. Defendants have established that her male colleague is not a proper comparator because he was more senior than the plaintiff and held a different title (see Uwoghiren v City of New York, 148 AD3d 457, 458 [1st Dept 2017] [Although the individual in which plaintiff compares herself to had previously held the same title as her, they were not similarly situated in light of the differences in their experience, their tenure and current positions, and their job responsibilities]). In opposition, plaintiff has failed to offer facts demonstrating that the male colleague was similarly situated or otherwise raise an issue of fact as to whether these actions were because of her gender.
However, even if the plaintiff cannot show differential treatment based on these tangible employment actions, she may still assert a claim that she was treated less well based on alternative conduct (see Suri v Grey Glob. Group, Inc., 164 AD3d 108, 120 [1st Dept 2018]). The standard for a discriminatory act under the NYCHRL is lenient, the conduct need not be tangible, it is sufficient to show differential treatment of any degree based on a discriminatory motive (Charles v City of New York, 21 CIV. 5567 [JPC], 2023 WL 2752123, at *7 [SDNY Mar. 31, 2023]; see also Williams v Regus Mgt. Group, LLC, 836 F Supp 2d 159, 173 [SDNY 2011] [The NYCHRL expands the definition of discrimination beyond conduct that is tangible like hiring or firing to encompass all allegations that a plaintiff is treated differently based on a protected status]). When a supervisor sexually harasses a subordinate because of that subordinate’s sex, that supervisor discriminates on the basis of sex (Ananiadis v Mediterranean Gyros Products, Inc., 151 AD3d 915, 917 [2d Dept 2017]). Therefore, when construing the phrase “discriminate against… in terms, conditions or privileges of employment” broadly, it has been reasoned that forcing a targeted employee to suffer unwanted gender-based conduct imposes a different term or condition of employment on her (Mihalik v Credit Agricole Cheuvreux N. Am., Inc., 715 F3d 102, 110 [2d Cir 2013]; quoting Williams v New York City Hous. Auth., 61 AD3d 62, 76 [1st Dept 2009]).
Plaintiff asserts that she was treated less well than other employees as a result of the alleged misconduct and harassment by her supervisor, Slobodyan. However, as the NYCHRL is not a general civility code, the plaintiff still bears the burden of showing that the conduct is caused by a discriminatory motive (Mihalik v Credit Agricole Cheuvreux N. Am., Inc., 715 F3d 102, 110 [2d Cir 2013]). The plaintiff must allege a nexus between her sex and the discriminatory conduct by showing that the mistreatment was motivated by discriminatory animus (see Rothbein v City of New York, 18-CV-5106 [VEC], 2019 WL 977878, at *9 [SDNY Feb. 28, 2019]). The plaintiff, to survive summary judgment, need only adduce evidence of the existence of unwanted gender-based conduct (Bermudez v City of New York, 783 F Supp 2d 560, 579 [SDNY 2011]).
Plaintiff asserts that Sloboydan subjected her to gender or sex-based conduct by making comments, remarks, and/or gestures that were either directed at her or were made in her presence. Plaintiff testified that shortly after she began her employment, Slobodyan would stand or sit very close to her and on one occasion said, “what are you so nervous about” in a flirtatious demeanor (NYSCEF Doc. No. 41 at 26-27). Plaintiff also testified that at some point in the first three months of her employment, and after she did not say good morning to him, Slobodyan stood over her and said, “do what I tell you to do” (Id. at 24). When asked to describe his tone and body language, plaintiff testified that his voice was raised to her, it was stern, and authoritarian (Id.). Plaintiff alleges that within four to five months of her employment, Sloboydan walked down the aisle and roughly touched his belt (Id. at 38). Regarding the incident, plaintiff testified that in a rough fashion facing her, he had his hand on his belt buckle and was moving it back and forth, and to her it signified a sexual innuendo (Id. at 34-40). Plaintiff testified that while doing it, Slobodyan was looking right at her and walking straight towards her, and the interaction prompted some of the men to comment that “he would have f…eked her on the floor” (Id.). Plaintiff testified that while in a meeting with other men, Slobodyan allegedly drew breasts on the table of the desk she was sitting in (Id. at 41). Plaintiff asserted that in the meeting, while looking over to the men, Sloboydan said something along the lines of “I like these”, drew a circle with a dot in the middle and smirked when he said it (Id.). Additionally, plaintiff alleged that in a technical ad hoc meeting, Slobodyan said, “we don’t want to show them these”, referring to her breasts (Id. at 43). Plaintiff testified that her impression was that he was referring to her breasts because he was looking at them and was talking about her clothing, though he did not reference her clothing (Id. at 44). Plaintiff alleged that on another occasion, Sloboydan referred to her as a “whore” and a “spoiled brat” to another co-worker (Id. at 47-48). Regarding how the plaintiff knew these comments were about her, plaintiff testified that by process of elimination she couldn’t see who else he would be talking about and later clarified that she and Slobodyan were looking at each other when this comment was made (Id. at 48, 110). In her affidavit, plaintiff stated that in a meeting Slobodyan mentioned that he may be looking for a Benchmarking Manager (NYSCEF Doc. No. 69 at 20). Plaintiff asserts that immediately after walking out of this meeting, Sloboyan stated to another coworker, within earshot, “I told her I was looking for a manager, maybe now she will open her legs” (NYSCEF Doc. No. 69 at 21; NYSCEF Doc. No. 41 at 49-50). Plaintiff testified that Slobodyan looked in her direction as he made the comment and spoke so she would hear it, based on his volume and her sitting within 10- or 12-feet earshot (NYSCEF Doc. No. 41 at 50). Accordingly, plaintiff’s allegations regarding Sloboydan’s conduct, if true, would reasonably permit a jury to find that she was subjected to differential treatment because of her gender (Crookendale v New York City Health and Hosps. Corp., 175 AD3d 1132, 1132 [1st Dept 2019]).Even if a plaintiff establishes she was treated less well, defendants may still avoid liability if they prove that the conduct complained of consists of nothing more than what a reasonable victim of discrimination would consider petty slights and trivial inconveniences (Mihalik v Credit Agricole Cheuvreux N. Am., Inc., 715 F3d 102, 111 [2d Cir 2013]). The employer has the burden of proving the conduct’s triviality under the NYCHRL (Id.). Defendants assert that the conduct plaintiff complains about was not discriminatory, arguing that the remarks were facially neutral and were not made about or to the plaintiff. Specifically, defendants assert that plaintiff ascribed motivation to facially neutral comments and assumed that comments, without the plaintiff’s name being mentioned, were about her. Defendants argue that 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]). Therefore, defendants assert that plaintiff has not established any discriminatory conduct or offered evidence that would lead a reasonable jury to believe that this conduct was gender-based.
Contrary to defendants’ assertions, plaintiff has demonstrated a triable issue on whether she was subjected to differential treatment or whether she was treated less well by suffering unwanted gender-based conduct and harassment. First, any argument by defendants that Slobodyan and/or another employee denied that these comments were made or that this conduct occurred, is unavailing. At the summary judgment stage, judgment should normally be denied if there exists a triable issue of fact as to whether such conduct occurred (Hernandez v Kaisman, 103 AD3d 106, 114 [1st Dept 2012]; see also Franco v Hyatt Corp., 189 AD3d 569, 570 [1st Dept 2020] [Although defendants deny that the acts or comments occurred, disputed factual issues, especially those requiring resolution of credibility issues, are generally unsuitable for summary adjudication]).
Further, the argument that some of the comments were not made explicitly to the plaintiff or that the remarks could be seen as facially neutral does not defeat the plaintiff’s claim. In evaluating the claim and the defense, courts must consider the totality of the circumstances as the overall context in which the challenged conduct occurs cannot be ignored (Mihalik v Credit Agricole Cheuvreux N. Am., Inc., 715 F3d 102, 111 [2d Cir 2013]). When considering the context of the comments, plaintiff, in her testimony, sufficiently detailed the circumstances surrounding the remarks – from which a jury could reasonably infer that they were directed at or were about the plaintiff. Additionally, 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]). Where the alleged discriminatory conduct in question represents a borderline situation, the determination should be left to the trier of fact (Id.). Considering that sexual advances are not always made explicitly, it is not the province of the court itself to decide what inferences should be drawn… if there is any evidence from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper (Suri v Grey Glob. Group, Inc., 164 AD3d 108, 116 [1st Dept 2018]). Based on the evidence offered by plaintiff, if believed, a trier of fact could find that these actions, especially when considered holistically, were unwelcome sexual conduct (Franco v Hyatt Corp., 189 AD3d 569, 571 [1st Dept 2020]). Accordingly, it is the jury’s function to determine what happened between the defendant and plaintiff and whether it amounted to gender discrimination (Suri v Grey Glob. Group, Inc., 164 AD3d 108, 116 [1st Dept 2018]).
If true, especially when taken together, these allegations about her supervisor’s conduct cannot be said to be the type of petty slights and trivial inconveniences that most employees encounter in the workplace (Raji v Societe Generale Americas Sec. LLC, 15CIV1144ATJLC, 2018 WL 1363760, at *5 [SDNY Feb. 28, 2018]). On a motion for summary judgment dismissing a NYCHRL claim, defendants bear the burden of showing that, based on the record evidence, and drawing all reasonable inferences in plaintiff’s favor, no jury could find defendant liable for gender-based discrimination (Bond v New York City Health and Hosps. Corp., 215 AD3d 469, 470 [1st Dept 2023]).
The court concluded that, since issues of fact exist as to whether the plaintiff was treated less well because of her gender and/or whether the alleged conduct would constitute petty slights or trivial inconveniences, denial of defendants’ motion for summary judgment on the plaintiff’s NYCHRL gender discrimination and/or harassment claim was warranted.