In Holloway v. Tully Construction Co. Inc., No. 157573/2021, 2025 N.Y. Slip Op. 50739(U), 2025 WL 1364359 (Sup Ct, May 07, 2025), the court denied defendant’s motion for summary judgment on plaintiff’s gender discrimination claim asserted under the New York City Human Rights Law.
From the decision:
While plaintiff’s first cause of action appears to allege discrimination under both a disparate treatment theory and a hostile work environment theory (see NYSCEF doc. no. 1 at ¶72), the First Department has found that the City Human Rights Law “speaks to unequal treatment and does not distinguish between sexual harassment and hostile work environment.” (See Suri v Grey Global Group., Inc. 164 AD3d 108, 115 [1st Dept 2018]; Bond v New York City Health & Hosps. Corp., 215 AD3d 469, 470 [1st Dept 2023] [“the City HRL does not differentiate between sexual harassment and other forms of gender discrimination”]). Consequently, since Tully Construction does not dispute plaintiff’s membership in a protected class or that she was qualified for her position within the company, the only dispute issue remaining is whether Tully Construction treated her “less well” under an inference of discrimination.
In James v Amtrack (2005 US Dist. LEXIS 5401 [SDNY 2005]), a plaintiff asserted a disparate impact claim under Title VII and the New York State Human Rights Law based upon Amtrak’s facially neutral policy or practice of supplying unisex comfort facilities at one of its work sites. In upholding a jury verdict in favor of the plaintiff on this claim, the Southern District of New York held that said jury could have reasonably concluded that women employees would have been subject to disparate impacts—in the form of “an egregious lack of privacy,” “potential disciplinary action for using alternate facilities”, and “unsanitary conditions”—that did not apply to the same degree as male co-workers. (Id. at *14.) Though not binding authority, the Court finds its reasoning persuasive. Here, plaintiff may reasonably argue that whether she was treated differently from similarly situated male employees cannot be determined solely by acknowledging that all employees were required to use the same restroom facilities—that, instead, the difference in treatment requires assessing the relative burden a unisex facility places on a female versus male employee. (See Bond, 215 AD3d at 470 [noting that defendant bears the burden of showing that “no jury could find defendant liable for gender-based discrimination”].)
Tully Construction contends that the more persuasive authority is Dauer v Verizon Communs. Inc. (2009 U.S. Dist. LEXIS 5182 [SDNY 2009]). There, a plaintiff similarly complained of being forced to use a “dirty” unisex facility that was also used by her male co-workers. While the Southern District of New York ultimately dismissed the claim, it did so for various reasons that highlight why the case is unpersuasive. First, because the claim was brought pursuant to Title VII and the New York State Human Rights Law, the court only analyzed the claim under a hostile work environment theory, specifically finding that the plaintiff did not attempt to establish disparate treatment. As referenced above, after Dauer, the First Department has since emphasized that the City Human Rights Law does not draw this distinction between theories. Second, a hostile work environment requires the plaintiff to complain of conduct that was “objectively severe or pervasive” such that the reasonable person would find hostile or abusive—a standard that the City Human Rights Law eschews. (Williams, 61 AD3d at 75-76.) Thus, whether the plaintiff’s claims in Dauer rose to the level of severe or pervasive is not material to whether Holloway was treated “less well” on the basis of her gender.
Tully Construction raises several additional arguments as to why her gender discrimination claim fails, each of which are equally unavailing. It contends that the lack of restroom access cannot be considered an adverse action, and, in any event, it provided her with a separate women’s facility. However, as Williams makes clear, plaintiff need not allege an adverse action, merely that she was treated less well, which is addressed above. As to the separate facilities, Coppes attests that Tully Construction ordered them in or around December 2019 and installed them in March 2020, or at least several months after plaintiff avers she started using outside facilities. In addition, he admitted that Costa—to whom plaintiff directly reported to when seeking to use alternative facilities—had managerial and supervisory authority as a foreman, meaning, at the very least, there are questions of fact as to when and how Tully Construction responded to plaintiff’s complaints. (NYSCEF doc. no. 21 at 39-40.)
Separately, in applying the McDonnell-Douglas approach, Tully Construction contends that it has established a legitimate, non-discriminatory reason to terminate her employment. While the Court certainly recognizes that her allegedly unexplained absences may be considered a legitimate ground for her termination, it also recognizes that plaintiff has submitted various proofs that, when considered in a light most favorable to her, plausibly suggests that this rationale was pretextual. For example, Coppes acknowledged that plaintiff’s replacement during her FMLA leave did not complain about the state of the restrooms, which might provide a reason Tully Construction would prefer her, explain why Coppes initially responded to plaintiff’s text that “there is no work available at this time,” and give cover for her termination that occurred approximately one month after returning to work.
Accordingly, summary judgment was not warranted on this claim.