Sexual Harassment / Hostile Work Environment Claim Survives Summary Judgment Against Compass Group USA

In Wright v. Compass Group USA, No. 516793/2018, 2021 WL 2354877 (N.Y. Sup Ct, Kings County June 08, 2021), the court, inter alia, denied defendants’ motion for summary judgment on plaintiff’s sexual harassment (hostile work environment) claims asserted under the New York State and City Human Rights Laws (NYSHRL and NYCHRL, respectively).

The court summarized the facts, in pertinent part, as follows:

Plaintiff alleges that, in April 2017, the plaintiff’s supervisor, defendant Bertrand Dulac, reached his hand into the plaintiff’s front left pants pocket in an attempt to take the plaintiff’s cell phone. The plaintiff alleges that he felt Mr. Dulac’s hand touch his penis and stated that he pushed Mr. Dulac’s hand away and told him to stop. In May 2017, the plaintiff alleges that Mr. Dulac picked up a ripe banana and said to plaintiff: “Mark, look at this banana. It is so big and juicy. It looks like a Jamaican banana. I like Jamaican bananas because they are always big and juicy.” The plaintiff alleges that he believed the comments were referencing his penis, and that he felt shame, embarrassment, and humiliation as a result. In June 2017, the plaintiff alleged that Mr. Dulac told him to remove a towel from his back pocket because his “ass is big” and that he needs to “lose weight” because he is “getting too fat inside there.” The plaintiff further alleges that on October 11, 2017, Mr. Dulac entered the locker room while the plaintiff was on break and attempted to forcefully remove the phone from plaintiff by holding on to plaintiff’s hand. The plaintiff also testified to another occasion where Mr. Dulac tried to forcefully remove the plaintiff’s phone from his hand in the hallway. On October 25, 2017, the plaintiff claims that while he was talking to a co-worker, Mr. Dulac told plaintiff that he was “flirting with a man.”

Plaintiff states that he reported this conduct to a man named “Steve” at Human Resources for the first time on or about October 31, 2017, and that he again spoke with Steve on November 8th. The plaintiff alleges in his complaint that Steve responded to him by saying something to the effect of “I don’t see how this is harassment, but I’ll report your claim,” and further stated that the “matter has been reported to the District Vice President and will be dealt with according to company policies.” Plaintiff also alleges that no investigation was conducted, no disciplinary action was taken, and that plaintiff was forced to continue working under Mr. Dulac’s supervision. Plaintiff further testified that on January 30, 2018, he complained of sexual harassment, sexual assault, gender discrimination, and retaliation through his attorneys in a pre-litigation letter sent to defendants. [Citations omitted.]

The court summarized the law as follows:

A plaintiff claiming a hostile work environment animated by discrimination in violation of the [NYSHRL] must establish that the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the condition of the plaintiff’s employment and create an abusive work environment. To determine whether a hostile work environment exists, a court must consider all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interfered with an employee’s work performance.

The [NYCHRL] is broader than [the NYSHRL], and provides that a plaintiff claiming harassment/hostile work environment need only demonstrate that he or she was treated “less well than other employees” because of a characteristic protected by the NYCHRL, such as race, religion, or gender. … The Court further recognized an affirmative defense whereby defendants can 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. Moreover, the record must be examined as a whole to determine whether, in light of all the circumstances, the evidence supports a finding discriminatory intent. [Citations omitted; cleaned up.]

Applying the law, the court explained:

Viewing all the circumstances and facts in the light most favorable to the plaintiff, the defendant’s motion for judgment as a matter of law dismissing the plaintiff’s NYCHRL and NYSHRL claims for hostile work environment based on sexual harassment is denied. The plaintiff alleges that defendant Bertrand Dulac made physical contact with him and subjected him to inappropriate verbal comments from April 2017 through October 31, 2017. There are issues of fact as to whether the incidents alleged by the plaintiff, which took place over the course of seven months, created an abusive working environment. In this case, the defendants fail to establish an entitlement to summary judgment, as issues of fact exist with regard to whether a reasonable victim of discrimination would consider plaintiff’s allegations nothing more than petty slights and trivial inconveniences.

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