In Simmons v. Baccarat Inc., No. 651516/2023, 2025 WL 1735659 (N.Y. Sup Ct, New York County June 23, 2025), the court, inter alia, granted plaintiff’s motion to dismiss plaintiff’s claims of hostile work environment and sexual harassment under the New York State and City Human Rights Laws.
From the decision:
The Moving Defendants correctly assert that the complaint fails to state a claim for sexual harassment or hostile work environment under either the NYSHRL or NYCHRL. Even under the liberal pleading standards discussed above, the threshold requirement for such claims is that a plaintiff must allege that the adverse employment action or alteration in employment occurred under circumstances giving rise to an inference of discrimination based on the plaintiff’s membership in a protected class (see Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 [2004]; Ferrante v American Lung Assn., 90 NY2d 623, 629 [1997]; Morales, 184 AD3d at 755). The complaint contains an extensive recitation of allegedly improper and hostile actions taken against the plaintiff by Shreve and Krutoyarsky but there is nothing in the complaint which indicates that any of the complained-of actions were taken against the plaintiff based on his membership in any protected class. Indeed, there is no mention in the complaint itself of any purported protected class that the plaintiff might be a member of.
The plaintiff’s assertion that he is a “gay man” and that he was “exposed to sexually harassing conduct due to his sexual orientation” is referenced for the first time in his attorney’s memorandum of law in opposition to the motions to dismiss. Also raised for the first time in the opposition memorandum of law are claims that the plaintiff experienced “unwanted” conduct by Shreve and “was exposed to sexually harassing conduct due to his sexual orientation.” None of these allegations are plead in the complaint. While a court may freely consider affidavits submitted by the plaintiff himself to remedy any defects in the complaint, a memorandum of law written by counsel is not an affidavit and is not proof or evidence supporting any factual allegations pled in the complaint. Even an affirmation of the plaintiff’s attorney submitted in opposition to the motion to dismiss would not be of any probative value. Here, the plaintiff failed to submit even an attorney’s affirmation, let alone his own affidavit, in support of any alleged sexual harassment or hostile workplace claims. Without alleging membership in a protected class in the complaint, the plaintiff cannot establish a necessary element of his discrimination claims.
Moreover, the allegations related to “sexually-themed text messages” fail to support a claim of sexual harassment. The complaint alleges that Shreve sent the plaintiff text messages with sexualized content, but the plaintiff’s own complete text exchanges, provided by his counsel, demonstrate that the plaintiff not only voluntarily participated in the text exchanges but also actively solicited sexually explicit content from Shreve. Any claims to the contrary in the complaint (of which there are none) would be flatly contradicted by the documentary evidence, mainly the text messages themselves.
Finally, many of the plaintiff’s allegations relate to incidents he did not witness, or which occurred to unidentified individuals. For example, allegations that Shreve kissed an executive assistant’s husband, bullied others on Zoom calls, or showed “illicit photographs” to other employees are all second-hand allegations that the plaintiff admits he did not personally witness and/or are not relevant to the plaintiff’s claim of being sexually harassed.
Accordingly, dismissal was warranted.