Long v. Aerotek, Inc.

202 A.D.3d 1216

162 N.Y.S.3d 521

Karen LONG, Respondent,

v.AEROTEK, INC., et al., Appellants.

531638

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: October 14, 2021

Decided and Entered: February 10, 2022

Bond, Schoeneck & King, PLLC, Albany (Stuart F. Klein of counsel), for appellants.

Finn Law Offices, Albany (Ryan M. Finn of counsel) and Husch Blackwell, LLP, Kansas City, Missouri (William E. Corum admitted pro hac vice), for respondent.

Before: Garry, P.J., Egan Jr., Aarons, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Egan Jr., J. Appeal from an order of the Supreme Court (Lynch, J.), entered June 10, 2020 in Albany County, which partially denied defendants’ motion for summary judgment dismissing the complaint.

Plaintiff, a single mother of Asian–American descent, was hired in August 2014 by defendant Aerotek, Inc. and worked in its office in the City of Albany, first as recruiter and then, upon her promotion in August 2015, as an account manager. Plaintiff was supervised by defendant Nicholas LaRocca from January to September 2015, and by defendant Michael Hawkins from January 2016 until she resigned on October 24, 2017.

Plaintiff commenced this action in June 2018, alleging, in relevant part, that defendants violated the Human Rights Law (see Executive Law § 290 et seq. ) by discriminating against her based upon her gender, familial status and status as a victim of domestic violence, by creating a hostile work environment so extreme that it led to her constructive discharge, and by committing unlawful retaliation.¹ Plaintiff alleged in particular that LaRocca sexually harassed her while he was her supervisor by, among other things, subjecting her to unwanted sexual contact, propositioning her, threatening to hinder her career if she rebuffed his advances and making discriminatory comments to her and other women. She asserted that LaRocca continued to engage in impermissible conduct after she began working under Hawkins, including by continuing his sexist comments and actively undermining her standing with coworkers, and that Hawkins also discriminated against her by, among other things, removing her from a senior leadership team and placing her on a performance improvement plan (hereinafter PIP). Plaintiff further alleged that she was retaliated against because of her complaints about that treatment to defendant Suzanne Russo, one of Aerotek's human resources officials, and that the situation became so intolerable that she involuntarily resigned in October 2017. Following joinder of issue and discovery, defendants moved for summary judgment dismissing the complaint. Supreme Court granted the motion as to defendant Allegis Group, Inc. and denied the motion as to the remaining defendants. This appeal ensued.

We affirm. Plaintiff claimed the existence of a hostile work environment premised upon her gender and upon her status as both a victim of domestic violence and a single mother. A hostile work environment claim requires proof of a workplace "permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of [the plaintiff's] employment and create an abusive working environment" ( Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 310, 786 N.Y.S.2d 382, 819 N.E.2d 998 [2004] [internal quotation marks, citations and brackets omitted]; see Bilitch v. New York City Health & Hosps. Corp., 194 A.D.3d 999, 1003, 148 N.Y.S.3d 238 [2021] ; Pawson v. Ross, 137 A.D.3d 1536, 1537, 29 N.Y.S.3d 600 [2016] ). In assessing whether a plaintiff has made that showing, "a court must consider all the circumstances, including the frequency of the discriminatory 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 A.D.3d at 1003, 148 N.Y.S.3d 238 ; see Pawson v. Ross, 137 A.D.3d at 1537, 29 N.Y.S.3d 600 ; Minckler v. United Parcel Serv., Inc., 132 A.D.3d 1186, 1187, 19 N.Y.S.3d 602 [2015] ). The workplace must also "be both subjectively and objectively hostile," meaning that "a plaintiff must not only perceive that the conditions of his or her employment were altered because of discriminatory conduct, but the conduct also must have created an environment that a reasonable person would find to be hostile or abusive" ( Pawson v. Ross, 137 A.D.3d at 1537, 29 N.Y.S.3d 600 ; see Forrest v. Jewish Guild for the Blind, 3 N.Y.3d at 311, 786 N.Y.S.2d 382, 819 N.E.2d 998 ).

At the outset, we reject defendants’ contention that a sequence of events in early 2015 – in which LaRocca, plaintiff's supervisor for much of that year, forcibly kissed plaintiff, repeatedly propositioned her and made a veiled threat to impede her career after she rejected his advances – could not be considered in assessing plaintiff's hostile work environment claim because said conduct occurred beyond the statute of limitations for this action commenced in June 2018. Although plaintiff did not allege that LaRocca made sexual advances after the first part of 2015, she did describe a consistent pattern of sexist commentary and other behavior on his part that could be read as an effort to follow through on his threat to undermine her career if she rebuffed his sexual desires. By way of example, plaintiff claims that LaRocca routinely mocked her appearance, critiqued her makeup and clothing, suggested to her coworkers that they did not need to listen to her because it was her "time of the month" or because she was "emotional" and "bitchy," went out of his way to "showcase[ ]" her absence from work events after she complained to Russo about the way she and her female coworkers were treated in June 2016, and claimed that he was too busy to meet with her when she asked to discuss business issues in 2017.² Accordingly, although plaintiff concedes that a quid pro quo sexual harassment claim based upon LaRocca's sexual advances would be time-barred, that conduct remains "relevant to events during the [subsequent] period" where LaRocca "swift[ly] transition[ed] from entreaty to retribution," and it may be considered on what is indisputably a timely hostile work environment claim ( Fitzgerald v. Henderson, 251 F.3d 345, 365 [2d Cir.2001], cert denied 536 U.S. 922, 122 S.Ct. 2586, 153 L.Ed.2d 776 [2002] ; see National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115–121, 122 S.Ct. 2061, 153 L.Ed.2d 106 [2002] ; Penniston v. City of New York, 2017 WL 11507663, *7, 2017 U.S. Dist LEXIS 228064, *21 [E.D. N.Y., Dec. 15, 2017, No. 13–CV–3572 (SLT/CLP)] ).

Turning to the claim itself, plaintiff articulated how she complained to Russo in June 2016 about comments made by LaRocca and male coworkers toward her and other women in the office, behavior that, like the other allegations made against him by plaintiff, LaRocca did not deny in the affidavit that he proffered in support of defendants’ summary judgment motion. Russo responded to that complaint by meeting separately with the women and the men in plaintiff's office to discuss the issue, but plaintiff described how it became common knowledge that she had made the initial complaint and how that knowledge led to her coworkers ostracizing her. Plaintiff went on to relate how she was removed from a senior leadership team in early 2017 by Hawkins, by then her supervisor, and how she suspected that Hawkins had done so because of her gender after learning that her male coworkers had been "very upset" by her inclusion and believed that it had occurred because, among other things, she was a woman. In his affidavit supporting defendants’ summary judgment motion, Hawkins made minimal efforts to rebut plaintiff's allegations that discrimination played a role in that removal, stating only that he allowed the leadership team to become inactive in early 2017 and, strangely, that he told plaintiff "to focus on growing her own business" when she subsequently asked about the team instead of telling her that it no longer existed. Plaintiff also detailed how Hawkins wanted to "talk [to her] about [her] feelings" when they met in the year prior to her October 2017 resignation – particularly after she became embroiled in a child custody dispute and he placed her, but not others with performance issues, on a PIP in July 2017 – and how he hindered her career by deterring her from pursuing business opportunities and not inviting her to coworker get-togethers such as golf outings. Plaintiff also described a conversation with one of her former supervisors that gave her some insight into the behavior of Hawkins, who admitted to the former supervisor that he did not "know how to handle" women and that he wanted plaintiff transferred to a different department so that he could avoid supervising her. Hawkins similarly made no effort to rebut those allegations in his affidavit.

In short, plaintiff's descriptions of LaRocca's behavior indicate that she was subjected to conduct that was first "physically threatening or humiliating" and consistently and "unreasonably interfered with [her] work performance" by undermining her with her colleagues ( Bilitch v. New York City Health & Hosps. Corp., 194 A.D.3d at 1003, 148 N.Y.S.3d 238 ; see Forrest v. Jewish Guild for the Blind, 3 N.Y.3d at 310, 786 N.Y.S.2d 382, 819 N.E.2d 998 ). She further alleged how her efforts to address that behavior were ineffective and led to her isolation at work, while she was treated poorly by Hawkins because of her gender and status as a single mother. When all of this proof is viewed in the light most favorable to plaintiff, we are satisfied that "a reasonable person could find both that [plaintiff] subjectively perceived [the alleged] conduct as abusive and that [the alleged] conduct created an objectively hostile or abusive environment" so as to warrant a trial on her hostile work environment...