In Diaz-Roa v. Hermes Law, P.C. et al, 24-cv-2105 (LJL), 2024 WL 4866450 (SDNY Nov. 21, 2024), the court, inter alia, denied defendants’ motion to dismiss plaintiff’s claims of sexual harassment asserted under the New York State and City Human Rights Laws.
From the decision:
The complaint contains several paragraphs of conduct alleged to constitute sexual harassment. Plaintiff alleges that she was “directed by Dwayne and Andrea Hermes to flirt and even become romantically involved with ClaimDeck clients, potential clients and partners” including while she worked remotely in New York. Dkt. No. 30 ¶¶ 4, 69–71. Mr. Hermes “fixated on [Plaintiff’s] appearance” by “directing her to ‘fix’ her makeup and accusing her of looking ‘tired’ in front of other ClaimDeck and Hermes Law employees while on remote calls from her New York workspace.” Id. ¶ 72. Mr. Hermes “did not fixate on the appearance of male employees.” Id. ¶ 74. In or about 2017, Mr. Hermes “jumped onto a scooter that [Plaintiff] was about to ride, sliding behind her in a compromising position” while “a colleague took pictures.” Id. ¶ 75. Finally, in or about November 2023, Mr. Hermes “compared [Plaintiff] to a piece of steak,” at a business dinner otherwise attended exclusively by men. Id. ¶¶ 4, 76.
First, Defendants argue that Plaintiff’s allegations of sexual harassment are “conclusory and vague” and that Plaintiff fails to “allege facts that explain how [the] alleged comments relate to Plaintiff’s sex or gender.” Dkt. No. 37 at 32. On a motion to dismiss “[a] court must first ignore ‘mere conclusory statements’ or legal conclusions, which are not entitled to the presumption of truth.” Pungitore v. Barbera, 506 F. App’x 40, 42 (2d Cir. 2012) (summary order) (quoting Iqbal, 556 U.S. at 678). Certain of Plaintiff’s allegations are too conclusory to be credited on the motion to dismiss. E.g. Dkt. No. 30 ¶¶ 4 (Plaintiff “was sexually harassed while working for Defendants”), 68 (Plaintiff “was subjected to sexual harassment”), 75 (Mr. Hermes “humiliated [Plaintiff] sexually”); cf. Lettieri v. Anti-Defamation League Found., 2023 WL 5152447, at *6 (S.D.N.Y. Aug. 10, 2023) (disregarding allegations that defendant “treated Plaintiff less well” or that defendant “discriminated against [her]” as conclusory).
Even among Plaintiff’s non-conclusory allegations, many are too vague or disconnected to Plaintiff’s gender to, in isolation, support an inference that Plaintiff was treated less well because of her gender. Under the NYCHRL and NYSHRL, “generalized hostility or generally uncivilized behavior is not actionable.” Lettieri, 2023 WL 5152447, at *7. “[T]he defendant’s offending conduct must have been keyed to a protected characteristic of the plaintiff.” Id. For example, Plaintiff does not allege sufficient facts to infer that Mr. Hermes’ comment comparing her to a piece of steak was gender-motivated. Though objectifying comments may be plausibly degradative, they are not inherently gendered. See, e.g., United States v. Ballard, 727 F. App’x 6, 9 (2d Cir. 2018) (finding “prosecution’s repeated characterization of [criminal defendant’s] treatment of the minor victims as ‘pieces of meat’ ” to be “strong rhetoric” but not improper); United States v. Salameh, 54 F. Supp. 2d 236, 272 n.50 (S.D.N.Y. 1999) (noting comments describing torture of a man wherein he was “kept naked in a freezing room, hanging like a piece of meat”), aff’d, 16 F. App’x 73 (2d Cir. 2001). Similarly, Plaintiff does not allege what about Mr. Hermes’ conduct in sliding behind her on a scooter was sex-motivated. She does not allege that he touched her in doing so or explain what about the position was “compromising.” Cf. Redd v. N.Y. Div. of Parole, 678 F.3d 166, 179 (2d Cir. 2012). Mere unwanted proximity will not necessarily rise to the level of sexual harassment. See, e.g., Lonergan-Milligan v. N.Y. State Off. of Mental Health, 2018 WL 6605686, at *2, 5 (W.D.N.Y. Dec. 17, 2018) (holding that where individual malingered at plaintiff’s work station, stood behind plaintiff making grunting and growling noises, and sat in plaintiff’s seat, such conduct was not necessarily due to plaintiff’s gender).
“While facially neutral incidents may be considered among the totality of the circumstances in any hostile work environment claim, there must be a circumstantial or other basis for inferring that incidents sex-neutral on their face were in fact discriminatory.” Cristofaro v. Lake Shore Cent. Sch. Dist., 473 F. App’x 28, 30 (2d Cir. 2012) (summary order) (citations and alterations omitted); see Ford v. N.Y.C. Dep’t of Health & Mental Hygiene, 545 F. Supp. 2d 377, 389 (S.D.N.Y. 2008) (Chin, J.) (comments that are “disrespectful and rude … but are not objectively indicative of gender animus” will not, on their own, support a claim of hostile work environment), aff’d sub nom. Ford v. N.Y.C. Dep’t of Health & Mental Hygiene, 352 F. App’x 471 (2d Cir. 2009); Figueroa v. City of New York, 118 F. App’x 524, 526 (2d Cir. 2004) (summary order); Kamrowski v. Morrison Mgmt. Specialist, 2010 WL 3932354, at *14 (S.D.N.Y. Sept. 29, 2010); Smith v. City of New York, 2018 WL 3392872, at *9 (S.D.N.Y. July 12, 2018). Plaintiff does not allege any circumstantial or other basis for inferring that these gender-neutral incidents were in fact sex-motivated. Viewed on their own, those gender-neutral allegations are insufficient to support an inference that Plaintiff was subjected to a sex-based hostile work environment.
Plaintiff’s remaining allegations—that Mr. Hermes commented negatively on her appearance but did not focus on male employees’ appearances, and that he and Ms. Hermes encouraged Plaintiff to use her appearance, flirt, or become romantically involved with potential clients or certain individuals in the industry—do support an inference that Plaintiff was subjected to inferior working conditions on account of her sex. See, e.g., Gaughan v. Rubenstein, 261 F. Supp. 3d 390, 416 (S.D.N.Y. 2017) (sustaining claim for sexual harassment because allegations that defendant made “remarks about Plaintiff’s appearance and using her femininity to successfully carry out certain job responsibilities, create[ ] a minimal inference that Plaintiff was subject to differential treatment on the basis of her gender”); Regan, 2012 WL 692056, at *10 (denying motion to dismiss claim for gender discrimination where plaintiff alleged “management expected her to flirt with clients and prospective clients” and “male co-workers regularly commented on her appearance”); Rodriguez, 2014 WL 1347369, at *2 (recommending denial of motion to dismiss for failure to state a claim for sexual harassment where plaintiff alleged that defendant instructed plaintiff on her appearance and told her “to flirt with male customers in order to generate more sales”); Johnson, 657 F. Supp. 3d at 554 (holding plaintiff pleaded claim for sexual harassment where he alleged the CEO pressured him to “have sex with colleagues, including herself, or with clients”). This is sufficient to state a claim under both the NYCHRL and NYSHRL. Dismissal is therefore not warranted on this basis.
The court proceeded to hold that, inter alia, plaintiff’s claims were not untimely and subject to dismissal on statute of limitations grounds, and that plaintiff suffered the “impact” of the harassment in New York City.
As to this latter point, the court noted plaintiff’s allegation that she felt the “impact” of the harassment in New York when she was encouraged to “flirt to attract potential clients or use her appearance to attract business, often while she worked remotely in New York” and when she was directed to “fix her makeup” and accused of “looking tired” in front of defendants’ employees while on remote calls from her New York workspace.