Question of Fact Whether Plaintiff-Employee Indicated Employer’s Sexual Advances Were “Unwelcome”–Dismissal of Employment Discrimination Complaint Reversed

The Second Department reversed Supreme Court, finding that there were questions of fact whether plaintiff-employee indicated by her conduct that defendant’s (Cohen’s) sexual advances toward plaintiff were “unwelcome” and whether plaintiff’s termination was for a non-discriminatory reason.  Supreme Court erred when it focused on whether plaintiff participated in sexual activity “voluntarily:”

The New York State Human Rights Law (Executive Law § 296, et seq.) and the New York City Human Rights Law (Administrative Code of the City of New York § 8-107) both make it an unlawful discriminatory practice for an employer to refuse to hire, to discharge, or to discriminate in compensation or in terms, conditions, or privileges of employment because of the sex of any individual (Executive Law § 296[1][a]; Administrative Code of the City of New York § 8-107[1][a]). Moreover, under both the State and City Human Rights Laws, it is unlawful to retaliate against an employee for opposing discriminatory practices (see Executive Law § 296[1][e], [7]; Administrative Code of the City of New York § 8-107[7]).

To establish its prima facie entitlement to judgment as a matter of law in a retaliation case commenced pursuant to either the New York State or New York City Human Rights Law, “a defendant must demonstrate that the plaintiff cannot make out a prima facie claim of retaliation or, having offered legitimate, nonretaliatory reasons for the challenged actions, that there exists no triable issue of fact as to whether the defendant’s explanations were pretextual” … . To prevail on a motion for summary judgment dismissing a cause of action alleging discrimination in violation of the New York State Human Rights Law, a defendant must demonstrate “either plaintiff’s failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for [the] challenged actions, the absence of a material issue of fact as to whether [its] explanations were pretextual” … . With respect to a cause of action alleging discrimination in violation of the New York City Human Rights Law, where a defendant moves for summary judgment and has ” put forward evidence of one or more nondiscriminatory motivations for its actions,’ a court should turn to the question of whether the defendant has sufficiently met its burden, as the moving party, of showing that, based on the evidence before the court and drawing all reasonable inferences’ in the plaintiff’s favor, no jury could find the defendants liable under any evidentiary route” … . * * *

… [T]he evidence submitted by the defendants, which included a transcript of the plaintiff’s deposition testimony, failed to eliminate all triable issues as to whether Cohen used his position to intimidate her into the relationship and as to whether the sexual conduct on his part was, in fact, “unwelcome.” In this regard, the plaintiff, at her deposition, consistently testified that the sexual relations were not welcome, that she felt as though she had no other choice but to participate, and that when she complained to Cohen, he made it very clear that there would be repercussions if she did not participate. In considering this testimony, we recognize that the question of whether particular conduct was “unwelcome” presents “difficult problems of proof and turns largely on credibility determinations committed to the trier of fact” … . The Supreme Court appears to have focused on the voluntariness of the plaintiff’s participation in the claimed sexual episodes. However, “the fact that sex-related conduct was voluntary,’ in the sense that the [plaintiff] was not forced to participate against her will, is not a defense,” and the “correct inquiry is whether [the plaintiff] by her conduct indicated that the alleged sexual advances were unwelcome” … . Overbeck v Alpha Animal Health PC, 2015 NY Slip Op 00736, 2nd Dept 1-28-15