The opinion of the court was delivered by: Gary L. Sharpe District Court Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff Melissa Atkinson commenced this action against defendants
New York State Olympic Regional Development Authority (ORDA), Gail
Setlock, David Bulmer, and Michael Pratt, asserting claims of hostile
work environment, gender-based discrimination, and retaliation
pursuant to Title VII of the Civil Rights Act of 1964,*fn1
42 U.S.C. § 1983, and the New York State Human Rights Law
(NYSHRL).*fn2 (Compl. ¶¶ 55-72, Dkt. No. 1.) Pending
are defendants' motions to dismiss pursuant to Fed. R. Civ. P.
12(b)(6). (Dkt. Nos. 8, 16.) For the reasons that follow, the motions
are granted in part and denied in part.
Plaintiff Melissa Atkinson was hired in November 2003 by defendant ORDA for the position of "Administrative Staff" at Gore Mountain.*fn3 (Compl. ¶¶ 19-20, Dkt. No. 1.) In November 2005, Atkinson was promoted to the position of "Kid Klub Supervisor," which she held each year until the end of the 2007-2008 ski season. (Id. ¶¶ 21-22.) While employed in that position, Atkinson "was never disciplined or provided with any written performance evaluations describing her work performance in anything other than positive terms." (Id. ¶ 25.)
Atkinson alleges that during the 2005-2006, 2006-2007, and 2007-2008 ski seasons, defendant David Bulmer, her immediate supervisor, "sexually harass[ed] [her] by directing unwelcome and offensive gender-based behavior towards her at the workplace." (Id. ¶¶ 26-27.) Specifically, Atkinson alleges that Bulmer repeatedly and continuously grabbed her, touched her breasts, and slapped her on the buttocks. (Id. ¶ 27.) Atkinson further contends that Bulmer made sexually inappropriate comments to her on a regular and continuous basis, including offensive and unwelcome comments about his genitalia. (Id. ¶¶ 28-29.) According to Atkinson, "Bulmer did not direct similar inappropriate, offensive, and unwelcome behavior towards male employees." (Id. ¶ 31.)
In October 2007, Atkinson made an internal complaint of harassment and discrimination to Kurt Wissell, ORDA's Assistant Manager at Gore Mountain. (Id. ¶ 33.) In connection with her complaint, Atkinson was interviewed by David McKillop and Trudy Stanton from ORDA's Human Resources Department. (Id. ¶ 34.) Thereafter, Atkinson claims she was told by Mr. McKillop that ORDA was giving Bulmer the option to resign "or face disciplinary charges for lying during an investigation and for his sexual harassment of [her]." (Id. ¶ 35.)
In November 2007, Bulmer resigned from his employment with ORDA. (See id. ¶ 36.) Atkinson contends that defendant Gail Setlock, Assistant Mountain Services Manager of Gore Mountain, blamed her for Bulmer's resignation and "was angry at [Atkinson] for complaining of sexual harassment." (Id. ¶ 37.)*fn4
In connection with his resignation, Bulmer was allegedly provided free season passes to ski at Gore Mountain. (Id. ¶ 39.) Atkinson further alleges that during the 2007-2008 ski season, following Bulmer's resignation, he frequently sought her out and "continued to sexually harass her at her workplace." (Id. ¶ 40.) During that season, Atkinson complained to defendant Michael Pratt, General Manager of Gore Mountain, regarding Bulmer's continued sexual harassment of her. (Id. ¶ 41.) According to Atkinson, however, Pratt refused to take any action in response to her complaints. (Id. ¶ 42.) Instead, Atkinson alleges that Pratt told her "in words, or in substance: 'David Bulmer no longer works at the Mountain, but he has a right to be there to ski. You will have to get used to it. Bulmer isn't going to move away.'" (Id.)
At the end of the 2007-2008 ski season, Atkinson was advised that her employment would continue for the 2008-2009 season. (Id. ¶ 44.) Atkinson contends, however, that on June 29, 2008, "[she] was notified that the qualifications for the position of Kids Klub Supervisor had been changed to include qualifications that [her] supervisors knew she did not possess." (Id. ¶ 45.) The next day, Atkinson contacted the ORDA Human Resources Department and was advised that Setlock and Pratt had instituted the change in job qualifications. (Id. at ¶ 46.) Atkinson alleges further that during a subsequent telephone call, Setlock told her that she should not apply for her former Supervisor position because she would not be hired. (Id. ¶ 48.) Setlock also allegedly sent a June 30, 2008 email to all snow sports staff from the 2007-2008 season, "informing them that the position of Kids Klub Supervisor was available and that anyone interested should apply." (Id. ¶ 49.) Ultimately, Atkinson was not rehired for the position of Kids Klub Supervisor, and she alleges that the individual that replaced her did not possess all of the newly-added job qualifications. (Id. ¶ 50.)
On July 28, 2008, Atkinson filed an administrative charge with the Equal Employment Opportunity Commission (EEOC), complaining of acts of unlawful discrimination and retaliation. (Id. ¶ 6.) The EEOC found reasonable cause to believe that in terminating her employment shortly after she lodged sexual harassment complaints, ORDA retaliated against Atkinson in violation of Title VII. (See id. ¶ 7.) On May 21, 2010, Atkinson received a right-to-sue letter from the EEOC and on August 17, 2010, she commenced the present action against defendants. (Id. ¶ 8.)
The standard of review under Federal Rules of Civil Procedure 12(b)(6) is well established and will not be repeated here. For a full discussion of the standard, the court refers the parties to its previous opinion in Ellis v. Cohen & Slamowitz, LLP, 701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010).
Under Title VII, it is "an unlawful employment practice for an employer ... to discharge any individual, or otherwise to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2(a)(1). Atkinson asserts two grounds upon which she alleges that ORDA violated Title VII:
(1) hostile work environment, and (2) retaliation. (Compl. ¶¶ 55-60, Dkt. No. 1.)
1. Hostile Work Environment
Atkinson contends that ORDA is liable under Title VII for subjecting her to a hostile work environment created by the discriminatory acts of Bulmer both during his employment at Gore Mountain and following his resignation. (Compl. ¶¶ 56-58, Dkt. No. 1.) ORDA seeks dismissal of Atkinson's hostile work environment claim under the theory that liability cannot be imputed to it for either Bulmer's pre or post-resignation conduct. (Dkt. No. 8, Attach. 1 at 3-5.) The court disagrees.
A hostile work environment under Title VII is one in which the workplace is "permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive so as to alter conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quotation marks and citation omitted). To establish a hostile work environment claim, a plaintiffmust show "(1) that the harassment was 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,' and (2) that a specific basis exists for imputing the objectionable conduct to the employer." Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (quotation marks and citation omitted).
To satisfy the first prong of this test, the misconduct alleged must be "severe or pervasive enough to create an objectively hostile or abusive work environment" and the plaintiff must "subjectively perceive that environment to be abusive." Id. (quotation marks and citation omitted). Atkinson alleges that between the 2005-2006 and 2007-2008 ski seasons, Bulmer regularly engaged in unwelcome and offensive sexual behavior.
(Compl. ¶¶ 27-29, Dkt. No. 1.) Specifically, she alleges that Bulmer repeatedly grabbed her, touched her breasts, slapped her buttocks and made sexually inappropriate comments, including references to his genitalia. (Id.)
Under the second prong, an employer is not automatically liable for sexual harassment committed by its employee. Petrosino v. Bell Atlantic, 385 F.3d 210, 225 (2d Cir. 2004). Where the harassment is attributed to a supervisor, however, but does not culminate in a tangible employment action, the employer bears liability unless it successfully establishes that it both "exercised reasonable care to prevent and correct promptly any sexually harassing behavior" and that "the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Id. (quotation marks and citation omitted).
The attribution of pre-resignation harassment to Bulmer, Atkinson's immediate supervisor, is sufficient at this stage to survive ORDA's motion to dismiss. The court, therefore, need not address the issue of ORDA's potential liability for failing to remedy Atkinson's complaints of harassment by Bulmer following his resignation.*fn5 Because Atkinson has met the minimum requirements of showing objective and subjective hostility and sufficient grounds upon which to impute to ORDA Bulmer's conduct, ORDA's motion to dismiss is denied as to Atkinson's Title VII hostile work environment claim.
Atkinson further alleges that ORDA is liable under Title VII for retaliating against her in response to her complaints of sexual harassment. (Compl. ¶¶ 58-60, Dkt. No. 1.) ORDA seeks to dismiss Atkinson's retaliation claim on the grounds that she failed to adequately allege the existence of protected activity and an adverse employment action. (Dkt. No. 8, Attach. 1 at 5-6.) The court disagrees with ORDA on both points. Title VII provides that "[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because [that employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing." 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation under Title VII, a plaintiff must show: "(1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action." McMenemy v. City of Rochester, 241 F.3d 279, 282 (2d Cir. 2001). The plaintiff's burden at this stage is "minimal." Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005).
For a plaintiff's actions to constitute a protected activity, she must have had a "good faith, reasonable belief that the underlying challenged actions of the employer violated the law." McMenemy v. City of Rochester, 241 F.3d 279, 283 (2d Cir. 2001). An adverse employment action is a "materially adverse change in the terms and conditions of employment." Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597 (2d Cir. 2006) (quotation marks and citation omitted).
Atkinson alleges that following her October 2007 complaint of sexual harassment, Pratt and Setlock changed the job requirements for her position of Kids Klub Supervisor so as to render her unqualified for that role. (Compl. ¶¶ 51-54, Dkt. No. 1.) Atkinson further contends that Setlock explicitly told her not to re-apply for the position of Kids Klub Supervisor because she would not be hired. (Id. ¶ 48.) Both the change in job qualifications and Setlock's discouragement from re-applying for the position, according to Atkinson, were retaliatory measures taken in response to her sexual harassment complaint. (Id. ¶¶ 51-54.)
In alleging that she was constructively forced from her position in retaliation for submitting a good faith complaint of sexual harassment, Atkinson has met her burden at this juncture. ORDA's motion to dismiss ...