PLAINTIFF’S “INVOLUNTARY RESIGNATION,” HOSTILE WORK ENVIRONMENT AND RETALIATION ACTION PROPERLY SURVIVED SUMMARY JUDGMENT; TWO JUSTICE DISSENT (THIRD DEPT).

The Third Department over a two-justice dissent, determined plaintiff’s employment discrimination and retaliation action properly survived summary judgment. Among the issues presented by the allegations was whether she “involuntarily resigned” because of the intolerably hostile work environment. Plaintiff alleged she was subjected to sexual harassment and was retaliated against after she complained about her treatment:

In our view, the broader account by plaintiff of a hostile work environment, Hawkins’ [plaintiff’s supervisor] behavior in placing plaintiff, but not a similarly situated man, on a PIP [performance improvement plan], and what plaintiff described as a wholly inadequate response by Russo [human resources official] to her August 2017 complaint about the situation reflect questions of fact as to whether plaintiff was subjected to a work environment so hostile that her only alternative was resignation and whether that hostility arose from a discriminatory motive … . Defendants attempted to rebut the presumption of discrimination arising from those facts via the affidavit of Hawkins, who averred in conclusory fashion that the other employee he supervised was performing better than plaintiff at the time she was placed on a PIP and that the other employee was also placed on a PIP at some point. Hawkins, however, gave no detail as to how the other employee compared to plaintiff on the performance metrics, failed to deny that the other employee was also underperforming on those metrics in July 2017 and offered no explanation as to why he did not seek to place both on a PIP at that time. Long v Aerotek, Inc., 2022 NY Slip Op 00915, Third Dept 2-10-22