CRAWFORD v. AMERICAN BROADCASTING COMPANY INC (2023)

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered June 9, 2022, which, to the extent appealed from, granted defendant Michael Corn's motion to dismiss the hostile work environment, sex discrimination, and quid pro quo harassment claims against him, and granted defendant American Broadcasting Company, Inc.’s (ABC) motion to dismiss the quid pro quo harassment claim against it and to strike paragraphs 4 and 22–33 of the amended complaint, unanimously modified, on the law, to deny Corn's motion to dismiss the hostile work environment and sex discrimination claims against him, and deny ABC's motion to strike paragraphs 4 and 22–33 of the amended complaint, and otherwise affirmed, without costs.

The allegations supporting plaintiff's hostile work environment and sex discrimination claims are timely, as she has sufficiently alleged facts comprising “a single continuing pattern of unlawful conduct extending into the [limitations] period immediately preceding the filing of the complaint” (Campbell v. New York City Dept. of Educ., 200 A.D.3d 488, 489, 160 N.Y.S.3d 12 [1st Dept. 2021], quoting Herrington v. Metro–North Commuter R.R. Co., 118 A.D.3d 544, 988 N.Y.S.2d 581 [1st Dept. 2014]).  The complaint alleges that, following Corn's sexual assault on plaintiff in February 2015, he continued to stare at her, lurked by her desk, made inappropriate, flirtatious comments toward her, disclosed intimate details about his marriage, and frequently pressured her to go out drinking, within the limitations period.  It cannot be said that, as a matter of law, these acts were not part of a single continuing pattern of unlawful conduct supporting her hostile work environment and discrimination claims (see Petit v. Department of Educ. of City of N.Y., 177 A.D.3d 402, 403–404, 113 N.Y.S.3d 30 [1st Dept. 2019]).

Moreover, under the New York City Human Rights Law (Administrative Code of City of N.Y. § 8–107) and amended New York State Human Rights Law (Executive Law § 296[h]), the allegations that Corn sexually assaulted plaintiff in 2015 and engaged in a pattern of gender-based misconduct in the workplace, demonstrate that she was subjected to inferior terms, conditions, or privileges of employment on the basis of her gender (see Anderson v. Edmiston & Co., Inc., 131 A.D.3d 416, 417, 14 N.Y.S.3d 376 [1st Dept. 2015]).

Plaintiff's quid pro quo harassment claims were correctly dismissed, as there is no allegation that Corn denied her a promotion during the limitations period, and she failed to adequately plead a pattern of unlawful conduct relating to her promotion (see James v. City of New York, 144 A.D.3d 466, 467, 41 N.Y.S.3d 221 [1st Dept. 2016]).  Plaintiff's vague allegation that she “attempted” to speak to defendant “over the next few years” is insufficient to support her claim (see id.;  cf.  Jeudy v. City of New York, 142 A.D.3d 821, 37 N.Y.S.3d 498 [1st Dept. 2016] [applying continuing violation doctrine to failure to promote claim, where plaintiff repeatedly applied for and was denied promotions]).

The motion to strike certain allegations in the amended complaint regarding defendant's sexual assault of another ABC employee should not have been granted.  At this stage in the litigation, defendants failed to demonstrate that allegations concerning alleged prior bad acts should be precluded, as any evidence regarding those allegations may be relevant to plaintiff's hostile work environment claim (see e.g. Robinson v. Dinneen, 203 A.D.3d 555, 556, 162 N.Y.S.3d 700 [1st Dept. 2022]).  Since hostile work environment claims are to be decided based on the totality of the circumstances (see Hernandez v. Kaisman, 103 A.D.3d 106, 112, 957 N.Y.S.2d 53 [1st Dept. 2012]), evidence relating to Corn's prior misconduct and behavior towards other women in the workplace is relevant in this case (see Robinson, 203 A.D.3d at 556, 162 N.Y.S.3d 700).