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Clerk disciplined for using cell after rejecting supervisor’s advances to take NYCHRL reprisal claim to jury

By Deborah Hammonds, J.D.

A fitness club desk clerk who alleged that she was continuously sexually harassed by her supervisor and was given a written warning in retaliation for rejecting his advances, largely survived summary judgment on her retaliation claims against the franchisor, franchisee, and supervisor under the New York City Human Rights Law (NYCHRL). Her claims under the New York State Human Rights Law (NYSHRL) and Title VII were dismissed without prejudice (Hernandez v. PFIP, LLC, December 1, 2015, Schofield, L.).

The employee asserted that her resistance to her supervisor’s sexual advances resulted in two forms of retaliation: (1) his forcing her to have sex with him and (2) his issuing a written warning for using her cell phone, a violation of the company’s “zero tolerance” policy against using cell phones on the gym floor or at the front desk while on shift.

First theory fails. The court concluded that, regardless of whether the employee asserted her retaliation claim under Title VII, state law, or city law, her first theory of liability could not survive summary judgment. She alleged that her supervisor forced her to have oral sex with him after she told him no. The employee was unable to establish a prima facie case of retaliation because she could not show causation—that her supervisor forced her to have sex because she resisted. “Non-consensual sex forced on an employee by a supervisor in the workplace is actionable as discrimination, not retaliation.”

Can proceed with second theory. However, the employee was able to proceed with her second theory of retaliation under the NYCHRL. She alleged that she rebuffed her supervisor when he tried to hug her shortly after they had sex for the last time and that he retaliated about two weeks later by issuing her a written warning for using her cell phone. While the court found it was unclear whether rejecting a harasser’s advances can constitute protected activity under Title VII or state law, doing so could be a basis for a city law retaliation claim. Rounding out her prima facie case, the employee provided evidence that she was given a disciplinary warning for telephone use, a terminable offense for which two people had previously been fired. This warning, the court found, was “reasonably likely to deter a person from engaging in protected activity.”

The supervisor satisfied the second step of burden shifting analysis with his assertion that the employee used her cell phone at work, contrary to company policy, and that she admitted she had used her phone to call her mother. The supervisor contended there was a video showing the employee going in and out of the backroom to make the call, and that another employee complained of overhearing her conversation.

Jury could find pretext. However, the court noted that it was the third step of the burden shifting analysis where the evidence would allow a reasonable jury to conclude that the defendants’ reasons were pretextual or not the sole basis for taking action. There was no evidence supporting the assertion of a complaining employee or the referenced video. Only the supervisor’s self-serving testimony of what he saw on video and what another employee heard supported the assertion that the clerk used her phone at work. On this basis, a jury could reject the supervisor’s testimony about the reported phone use and find that the reason for issuing the written warning was pretextual.

Possible retaliatory motive. As for a possible retaliatory motive, the timing of the warning—after the employee rebuffed the supervisor’s hug and stopped having sexual relations with him—provided a basis from which a reasonable jury could conclude that, if the employee used her cell phone at work, that fact was not the sole reason for her being given a written warning. Accordingly, the employee’s NYCHRL retaliation claim survived the defendants’ summary judgment motion on the merits.

Because the employee was entitled to no more damages if she proceeds only on the NYCHRL retaliation claim than if she pursues the identical claim under Title VII and the NYSHRL law, the court confined its analysis to the NYCHRL. The federal and state law retaliation claims were dismissed without prejudice to renewal in the event the employee identified some additional recovery or benefit to which she would be entitled under those claims but not the NYCHRL.