United States District Court, S.D. New York
OPINION & ORDER
A. ENGELMAYER UNITED STATES DISTRICT JUDGE
decision resolves a motion for partial summary judgment in
this case involving allegations of workplace sexual
harassment. Plaintiff Dorothy James brings claims under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §§
2000 et. seq. ("Title VII") and the New
York City Human Rights Law, N.Y.C. Admin. Code §§
8-101 et. seq. ("NYCHRL"). She alleges
that defendants-New York City Health and Hospitals Corp.
("NYC Health"), a not-for-profit corporation;
Harlem Hospital Center ("HHC"), a public hospital
run by NYC Health; Cheryl Isaacs, the Associate Director of
NYC Health; and Donald Waiters, an employee of NYC
Health-violated her rights under federal, state, and city law
during her employment at NYC Health. James's claims
include federal and city law claims of gender discrimination
and retaliation, and a state law claim of assault and
now move for partial summary judgment. They argue that (1)
James's NYCHRL claims are barred by the doctrine of
collateral estoppel; (2) James has failed to establish a
prima facie case of hostile work environment under
either Title VII or NYCHRL; and (3) James has failed to
establish & prima facie case of retaliation
under either Title VII or NYCHRL. For the following reasons,
the Court denies defendants' motion.
Health is a public benefit corporation that operates as the
public hospital system for the City of New York. JSF ¶
1. This system includes "acute care hospitals,
diagnostic and treatment centers, long term care facilities
and numerous health community health clinics."
an entity encompassing several health clinics, including the
Drew Hamilton Clinic ("Drew Clinic"), included
within NYC Health. Id. ¶ 2.
was employed at HHC between approximately 2006 and January
27, 2016. Id. ¶ 7. James held the title of
Principal Administrative Associate Level I, and was assigned
to various NYC Health clinics. Id. In February 2014,
James was assigned to the Drew Clinic's Registration and
Operation Department. Id. ¶ 10.
has been an NYC Health employee since 1992.
Id.¶\\. In 2014, Waiters was working at the
Drew Clinic with the title of Clerical Associate III in the
Medical Records and Patient Registration and Operation
has been an NYC Health employee since 2010, with the title of
Associate Director of the Harlem Hospital Network, which
includes the Drew Clinic. Id. ¶ 12. In 2014,
Isaacs was the supervisor of both Waiters and James.
Id. ¶ 13.
Incidents of Alleged Sexual Harassment
claims that Waiters sexually harassed her during their time
working together at the Drew Clinic. PI. 56.1 ¶¶
46-51. In her deposition, she testified to Waiters's
"very frequent" and "continuous"
harassing behavior, Maldonado Decl., Ex. L ("James
Depo.") at 34, which included making sexual innuendos,
"consistently staring and glaring" at her,
"following [her] around the clinic, " and
"trying to grab and touch" her, id. at
75-76. James testified to these examples of Waiters's
1. Around the time that James began working at the Drew
Clinic, Waiters stated to James, "A woman would never
have a problem with me, 'cause I'm well hung."
2. In or around late February 2014, in the registration area
at the Drew Clinic, Waiters stated to James, "A pussy
has to be clean for me to eat it[.] I know you're
clean." Id. at 30-31.
3. Between February and June, Waiters engaged in what James
described as "touchy-feely" behavior, in which he
would "[t]ry to embrace [James], try to come near [her],
[and] rub up against [her]." Id. at 76.
4. Throughout their time working together, Waiters would
frequently- approximately on a weekly basis-imitate sex acts
by wagging his tongue and moving his head back and forth
toward James, while making statements such as, "I know I
can satisfy a woman." Id. at 38-39.
5. At some point during the time that Waiters and James
worked together, Waiters began to unzip his zipper while
asking James the color of her underwear. Id. at 74.
6. At some point during the time that Waiters and James
worked together, Waiters said to James, referencing another
female employee, "All you have to do is buy her a pack
of cigs for her to give it up." Id. at 35.
7. At some point during the time that Waiters and James
worked together, after James removed a blazer she was
wearing, Waiters stated, "Oh, you could take it off.
I'm not going to stare at you too much."
Id. at 75.
testified that she made clear to James that his comments and
advances were unwanted. Id. ¶ 76. However,
Waiters would engage in "mockery that he would do
because [James] would not respond in kind or likeness to his
sexual advances." Id. at 74. James claimed that
Waiters persistently reacted negatively when she expressed
discomfort with his behavior:
When I didn't respond in kind and think that it was
appropriate, or spoke on it and said it was inappropriate,
then that's when you get the screaming. He would raise
his voice. "I'm just playing." He'd get
irate, irrational. He'd make little personal derogatory
comments, more so to get a rise or raise out of anyone that
Id. at 75. She testified to one incident in 2014 in
which, after she rejected Waiters's advances and
complained to others, Waiters publicly mocked James for her
"weak eye." Id. at 83.
testified that she had complained of Waiters' conduct
repeatedly to Isaacs. PI. 56.1 ¶¶ 52-54. In or
around March 2014, she did so in person and in email.
Id. at 54. Isaacs did not respond to her email, and
Waiters's harassment continued. Id. at 55.
Health has a written policy that prohibits sexual harassment
and outlines procedures for filing a sexual harassment
complaint with its Office of Equal Employment Opportunity
Health also has a "Workplace Violence Prevention"
policy that prohibits "occupational assaults, homicide,
or attempt or threat (physical or verbal) to inflict physical
injury occurring where a public employee performs any
work-related duty in the course of his or her
employment." Id. ¶ 4.
addition, NYC Health's "Operating Procedures No.
20-2 Tardiness" requires employees to "report for
work as scheduled both at the beginning of the work shift and
upon return from the meal period." Id¶5.
This policy defines excessive tardiness as "unexcused
tardiness that results in an employee's late arrival on
three (3) or more occasions in one month or in excess of 30
minutes in one month." Id. ¶ 5.
Health's Labor Relations Department sets the penalties
associated with violations of these tardiness and workplace
violence policies and procedures. Id. ¶ 6. In
deciding the particular penalty, the Labor Relations
Department follows a "progressive discipline
practice" and considers an employee's prior
disciplinary history in addition to the conduct underlying
the instant infraction. Id. ¶ 6.
Prior Disciplinary Histories
2014, Waiters had no disciplinary history at HHC. Def. 56.1
at 5; PL 56.1 at 7.
James, between 2006 and 2013, five disciplinary charges were
instituted against her in connection with violations of NYC
Health policies relating to tardiness and insubordination.
JSF ¶ 8. As of April 2013, James's most recent
penalty for excessive lateness had been a 55-day suspension
in July 2011. M¶ 9. In connection with excessive
lateness, James had also been issued a counseling session on
June 28, 2012, and a warning notice on November 9, 2012.
about April 26, 2013, disciplinary charges were instituted
against James in connection with her excessive lateness-a
total of one hour and 57 minutes-between December 10, 2012,
and April 5, 2013. Id. ¶ 14. On July 1, 2013,
NYC Health held a Step I hearing related to this April 2013
disciplinary charge. Id. ¶ 15. James's
union representative Aaron Stewart attended the hearing.
Id. James did not. Id.
April 2, 2014, an NYC Health Labor Relations Associate, Carla
Vasquez, sent an email to Stewart stating the following
regarding a penalty for the April 2013 charge: "I'm
willing to give Ms. James another chance of serving 60 days
straight. If she does not want to sign waiver, unfortunately
I will go for termination. Her last time, she got 55
days." Id. ¶ 16.
about April 6, 2014, James "complained" to Stewart
regarding the offered 60-day penalty and told Stewart that
NYC Health had threatened her with termination before her
first excessive lateness suspension. Id. ¶ 17.
April 8, 2014, Stewart sent James an email informing her that
NYC Health had "offered a forty (40) day suspension with
sixty (60) days on the books . . . due to progressive
discipline" and indicating to her that NYC Health would
"push for termination" if she did not accept this
offer. Id. ¶ 18.
Physical Altercation at the Drew Clinic
3, 2014, while James's April 2013 excessive lateness
charge was still pending, James and Waiters had a physical
altercation while working at the Drew Clinic. Id.
deposition, James described the incident as follows: James
was leaving the nursing area and walking to her work area
when Waiters approached her and grabbed her. James Depo. at
87. Waiters "pulled [James] to him and . . . rubbed
himself against James's "upper torso" and the
area "[f]rom [her] waist down." Id. at 88.
Waiters then stated something to the effect of, "You
don't come into this area without 'effin speaking to
me first." Id. After James replied something to
the effect of, "What's your problem? Get off of me,
" Waiters grabbed James's arms and wrist, causing
James's wristwatch to break. Id. at 87, 90. As
James backed away from Waiters, Waiters grabbed James's
legs and knees and "flipped" her backwards
"over the garbage receptacle, " causing her to fall
"against the wall." Id. at 87, 90. Other
employees in the area "jumped up" to ask if James
was all right because "the noise was so loud."
Id. Waiters then "tried to sail out of the area
like nothing happened, " and James "left the area
and . . . went and called the police." Id. at
deposition, Waiters testified to a starkly different
description of the incident. He claimed that he and James
were sitting in a "huddle" with other colleagues
when "all of a sudden she hit [him] on [his] hand."
Blocker Decl., Ex. I ("Waiters Depo") at 60.
Waiters claimed that he and James then began to
"hit" and "push" each other:
"[Y]ou know, it's going back and forth hitting her
on her hand, back and forth hitting each other on the hand,
like a push, most like a push." Id. Waiters
testified that James "then .. . just went irate, "
stated, "you're going to get my motherfucking watch
fixed, " and "started cursing at [him]."
Id. Waiters testified that he was
"puzzled" by this, and that he "hadn't
said anything to her." Id. After other
colleagues made statements such as "be
professional" and "walk away, " Waiters left
the area and went back to his office. Id. at 60-61.
Fifteen or 20 minutes later, police officers knocked on
Waiters's door and informed him that James had claimed
that Waiters had assaulted her. Id. at 61.
same day, both James and Waiters were suspended without pay
pending an investigation. Disciplinary charges were later
instituted against both. JSF ¶ 21.
penalty for the June 3, 2014, incident, Waiters served a
suspension of approximately 21 days, returning to work at the
Drew Clinic on June 23, 2014. Id. ¶¶
23-24. NYC Health held a Step 1(A) Hearing for Waiters on
June 23, 2014. Id. ¶ 22. Waiters accepted NYC
Health's recommended penalty of "seven (7) days and
four (4) hours [of the 21 ...