CROOKENDALE v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (2019)

Order, Supreme Court, New York County (Alexander M. Tisch, J.), entered June 27, 2018, which, to the extent appealed from, granted defendant's motion for summary judgment dismissing part of the gender discrimination claim as well as the constructive discharge and retaliation claims under the New York City Human Rights Law (City HRL), unanimously modified, on the law, to deny the motion as to the gender discrimination claim, and otherwise affirmed, without costs.

The motion court should not have dismissed the claim of gender discrimination while sustaining the claim of hostile work environment due to sexual harassment.  The City HRL does not differentiate between sexual harassment and other forms of gender discrimination, but requires that “sexual harassment” be viewed as “one species of sex- or gender-based discrimination” (Williams v. New York City Hous. Auth., 61 A.D.3d 62, 75, 872 N.Y.S.2d 27 [1st Dept. 2009], lv denied 13 N.Y.3d 702, 2009 WL 2622097 [2009]).

In her affidavit in opposition to defendant's motion, plaintiff sufficiently described being touched and complimented inappropriately to permit a jury reasonably to find that she was treated “less well” than her male colleagues because of her gender and that the conduct complained of was neither petty nor trivial (see Hernandez v. Kaisman, 103 A.D.3d 106, 114–115, 957 N.Y.S.2d 53 [1st Dept. 2012].

The constructive discharge claim was correctly dismissed, as plaintiff failed to submit evidence that defendant “deliberately created working conditions so intolerable, difficult or unpleasant that a reasonable person would have felt compelled to resign” (Short v. Deutsche Bank Sec., Inc., 79 A.D.3d 503, 504, 913 N.Y.S.2d 64 [1st Dept. 2010] [internal quotation marks omitted]).  Moreover, the record shows that, unlike the employer in Dall v. St. Catherine of Siena Med. Ctr., 966 F Supp 2d 167, 177–178 (E.D. N.Y.2013), defendant had not made a decision to terminate plaintiff when she voluntarily resigned.

Plaintiff also failed to raise an issue of fact as to retaliation.  Her vague, informal complaints to her supervisor's superior and the Equal Employment Opportunity office did not convey that she was discriminated against unlawfully and therefore do not constitute protected activity under the City HRL (see Gonzalez v. EVG, Inc., 123 A.D.3d 486, 487, 999 N.Y.S.2d 16 [1st Dept. 2014]).  Moreover, there is no evidence that any of her superiors had any knowledge of her complaints or engaged in any retaliatory conduct.

We have considered plaintiff's remaining arguments and find them unavailing.