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Swiderski v. Urban Outfitters, Inc.

United States District Court, S.D. New York

December 18, 2017

TATIANA SWIDERSKI, Plaintiff,
v.
URBAN OUTFITTERS, INC., Defendant.

          OPINION AND ORDER

          J. PAUL OETKEN UNITED STATES DISTRICT JUDGE.

         Plaintiff Tatiana Swiderski brings this action against Defendant Urban Outfitters, Inc., her former employer. She claims that Urban Outfitters unlawfully discriminated against her, retaliated against her, and constructively discharged her from employment in violation of the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8-107, and the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 296. Urban Outfitters moves for summary judgment. For the reasons that follow, the motion is granted in part and denied in part.

         I. Background

         The following facts are taken from the parties' statements of undisputed facts and are not subject to a genuine dispute except where otherwise noted.

         Swiderski was hired as a sales associate at Urban Outfitters in 2013, beginning work at an Urban Outfitters store located at 521 Fifth Avenue in Manhattan (“the Store”). (Dkt. No. 71-1 (“Pl.'s CSOF”) ¶ 1.) Her job was to “ensure customer satisfaction by helping customers and making sure that they felt welcome at the store.” (Id. ¶ 7.)

         A. The First Incident

         On November 1, 2013, Brian McCabe, a loss prevention agent employed by Defendant, caught a male customer (“the First Customer”) photographing or videotaping up Swiderski's skirt while she was on the stairs. (Id. ¶ 25.) The First Customer also photographed or videotaped Brooke Becker, another female sales associate, as well as certain unidentified customers. (Id. at ¶ 27.) McCabe confronted the First Customer and escorted him to the back of the Store, where he seized the First Customer's cell phone and deleted all the pictures and videos of Plaintiff, Becker, and the customers. (Id. ¶ 28.)[1]

         McCabe then told Becker and Plaintiff what had happened, and assured them that Urban Outfitters would do everything it could and that they should not worry. (Id. ¶ 31.) McCabe also purportedly circulated an email to “all of the Urban Outfitters” with a picture of the First Customer and his identification information to prevent him from returning to the store, although Plaintiff disputes whether such an email was actually circulated. (Id. ¶ 29; Dkt. No. 71-12, at 3.) McCabe also initially told Plaintiff that he would give her the First Customer's identification information so that she could file a police report, but Plaintiff testified that McCabe later refused to provide this information to her. (Pl.'s CSOF ¶¶ 33, 39, 42.) McCabe eventually received a “written warning” for mishandling this incident. (Dkt. No. 71-14 at 90-91.)

         Plaintiff also discussed the incident that day with Chris Morris, the Store Manager. She testified that he responded: “you're a girl in New York . . . things happen; it's your responsibility to watch out for yourself.” (Dkt. No. 69-1 at 69.) Defendant disputes whether Morris made such statements. (Pl.'s CSOF ¶ 41; Dkt. No. 71-5 at 44.) On November 11, 2017, in an e-mail to McCabe and another individual, Morris explained that Plaintiff wanted to call the police about the incident and that he was “not sure what to do in this situation.” (Pl.'s CSOF 134; Dkt. No. 71-13.) Plaintiff also testified that, a few weeks after the first incident, she accidentally bumped into Morris, who looked her “up and down and said, you never have to be sorry for that.” (Dkt. No. 69-1 at 247-48.)

         On the day of the first incident, Plaintiff also discussed it with Anna Mella, the Assistant Store Manager. (Pl.'s CSOF ¶ 138; Dkt. No. 69-1, at 74-75.) During that conversation, Mella and others told Plaintiff that they were “fully aware of at least one man that used to come in regularly and sit under the stairs, . . . and look up dresses.” (Dkt. No. 69-1, at 74-75.) Emily McManus, Manager of the Women's Department at the Store, also testified that she was aware of a “customer that came in sometimes . . . [and] look[ed] up the [skirts of] girls walking up the stairs.” (Dkt. No. 71-3, at 26.)

         Plaintiff also complained to McManus about the first incident several times. (Pl.'s CSOF ¶ 143; Dkt. No. 71-3, at 61; Dkt. No. 69-1, at 179.) During one such conversation with McManus (which Plaintiff apparently recorded), McManus stated that she was not aware of any company policy for dealing with customer harassment. (Pl.'s CSOF ¶ 51; Dkt. No. 69-1 at 116.)

         After this incident, Plaintiff's working relationship with McCabe deteriorated. He assured Plaintiff that he had tried to do the right thing, and asked her to drop the issue because he was in trouble for not handling it properly. (Pl.'s CSOF ¶ 43.) Plaintiff testified that he later approached her again, this time more aggressively, until she was “against the back wall of a cash register, ” and told her to “drop things” because she “had stirred up a bit of questioning.” (Id. ¶ 45.) She further testified that McCabe reported that he was told “he handled the whole situation [regarding the First Incident] incorrectly, ” and that he invaded her personal space, while staring “right into [her] eyes” and “whispering through his teeth in an aggressive manner” that he would “not be there to help her.” (Id. ¶ 46.) He also called her a “stupid bitch.” (Id.)

         Plaintiff complained to McManus about McCabe's conduct. (Id. ¶ 47.) Plaintiff also repeatedly complained to Urban Outfitters employees, including Morris and McManus, that the police had not been contacted regarding the First Incident. (Id. at ¶ 54.) Eventually, Morris provided Plaintiff with the First Customer's information, and she filed a police report. (Id. ¶¶ 55, 57.)

         After she filed the report, Plaintiffs interactions with McCabe continued to worsen. Per company policy, all employees are “screened” upon leaving a store to prevent theft of merchandise. (Id. ¶ 60.) Plaintiff testified that, after she filed the police report, McCabe “would always be the person to screen her when she left the store.” (Id. ¶ 61.) She further testified that, on at least four occasions, McCabe's screening involved “really invasive patdowns, ” during which he “reach[ed] into [her] jacket, ” “touch[ed] [her] sides and [her] waist, and “touch[ed] the sides of [her] hips, ” despite the fact that company protocol prohibited physically touching employees during such screenings. (Id. ¶ 62, 65.) Defendant disputes that McCabe ever violated the protocol prohibiting physical touching during screenings. (Id. ¶ 62.)

         B. The Second Incident

         In November 2013, Plaintiff was the victim of a second instance of customer harassment. As she was escorting a male customer to the men's department, he “reach[ed] for [her] face, ” tried to “put both of his thumbs into [her] mouth, ” said he “wanted to see her teeth, ” and licked her cheek. (Pl.'s CSOF ¶ 83.) When Plaintiff pulled away from him, the customer tried to grab her chest and the front of her dress, at which point she ran to the back room of the Store. (Id. at ¶ 85; Dkt. 69-1, at 218.) She told a male employee what happened, and that employee, along with a security guard, removed the offending customer from the store. (Pl's CSOF 86.) Plaintiff later reported the second incident to Mella and to Gabriel Tolito, a support manager in the women's department. (Id. at ¶ 88; Dkt. No. 71-4 at 32.) Defendant did not call the police after the second incident. (Id. 90.)

         C. Retaliation Allegations

         As noted above, Plaintiff complained to her superiors about how Urban Outfitters handled the first incident. (E.g., Id. ¶ 47.) After she complained, management placed Plaintiff in the back stock room of the Store and “assigned [her] tasks for which she had no formal training, ” including “manning the stock room, the register, and the women's accessories department.” (Id. ¶¶ 68-69.) Plaintiff testified that, prior to complaining about the customer harassment, she had never been assigned to work in the “back stock.” (Id. ¶ 173; Dkt. 69-1 at 126-27.) She alleges that, on one occasion, when she complained about being assigned to the stock room, she was told to “stop complaining because ‘[a]t least now people can't molest you.'” (Dkt. No. 71-1 at 176.) Moreover, Plaintiff testified that she was denied breaks at least twice, and that after she complained, her relationship with management employees, such as Tolito, deteriorated, and she no longer received “positive feedback.” (Pls. CSOF ¶ 73.)

         Plaintiff was also assigned to work a weekly late-night shift after the second incident. (Id. ¶ 92.) The parties dispute whether all employees at the Store were required to work one night shift a week: Plaintiff testified that no other employees were asked to work a late shift, while Urban Outfitters maintains that “[e]veryone at Urban Outfitters was required to work one night shift a week.” (Id. ¶¶ 93, 98; Dkt. 69-1 at 226-27.) After the second incident, Plaintiff asked that she not be scheduled to work night shifts, but Defendant denied that request. (Id. ¶ 95.) Ultimately, Plaintiff quit her job. She testified that she was prompted to quit in part because she would “have to walk through . . . the street, the park, the subway at potentially 2:00 [or] 3:00 in the morning.” (Id. ¶ 76, 78.)

         In 2014, Plaintiff filed this suit against Defendant, alleging employment discrimination and retaliation under state and municipal law.[2] Later that year, the Court denied Defendant's motion to dismiss for failure to state a claim. Swiderski v. Urban Outfitters, Inc., No. 14 Civ. 6307, 2015 WL 3513088 (S.D.N.Y. June 4, 2015). In March 2017, Defendant filed this motion for summary judgment.

         II. Legal Standard

         Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56. A fact is material if it “might affect the outcome of the suit under the governing law, ” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and a dispute is genuine if, considering the record as a whole, a rational jury could find in favor of the non-moving party, see Ricci v. DeStefano, 557 U.S. 557, 586 (2009).

         The movant's initial burden on summary judgment is to provide evidence on each element of his claim or defense illustrating his entitlement to relief. Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004). If the movant makes this showing, the burden shifts to the non-movant to identify specific facts demonstrating a genuine issue for trial, i.e., that reasonable jurors could differ over the evidence. Fed.R.Civ.P. 56(f); Anderson, 447 U.S. at 250-51. The court should view all evidence “in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor, ” and a motion for summary judgment may be granted only if “no reasonable trier of fact could find in favor of the nonmoving party.” Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (citation omitted). At the same time, the non-moving party cannot rely upon mere “conclusory statements, conjecture, or speculation” to meet its burden. Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

         III. Discussion

         Defendant moves for summary judgment on Plaintiff's sex-discrimination claims, which are based on a hostile work environment theory, her retaliation claims, and her constructive-discharge claims. Each is discussed in turn.

         A. Hostile Work Environment Claim

         Plaintiff claims that Defendant discriminated against her on the basis of sex in violation of state and municipal law by subjecting her to a hostile work environment.[3] See Torres v. Pisano, 116 F.3d 625, 630 (2d Cir. 1997) (“It is now accepted that [Title VII and the NYSHRL] . . . ‘strike at the entire spectrum of disparate treatment of men and women in employment' and . . . ‘forbid sexual harassment in the workplace.'”) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Under New York State law, “[i]n order to prevail on a hostile work environment claim, a plaintiff must make two showings: (1) that the harassment was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment [“hostile environment” element] and (2) that there is a specific basis for imputing the conduct creating the hostile work environment to the employer [“imputation” element].” Summa v. Hofstra Univ., 708 F.3d 115, 124 (2d Cir. 2013) (quoting Duch v. Jakubek, 588 F.3d 757, 762 (2d Cir. 2009) (quotation marks omitted).[4] “Finally, it is ‘axiomatic' that in order to establish a sex-based hostile work environment . . ., a plaintiff must demonstrate that the conduct occurred because of her sex.” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (quoting Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001).[5]

         The NYCHRL, however, “was intended to be more protective than the state and federal counterpart[s].” Selmanovic v. NYSE Grp., Inc., No. 06 Civ. 3046, 2007 WL 4563431, at *4 (S.D.N.Y. Dec. 21, 2007) (citing Farrugia v. North Shore Univ. Hosp., 820 N.Y.S.2d 718 (N.Y. Sup. Ct. 2006)). Accordingly, Plaintiff's burden is lower under city law with respect to the first element of her hostile work environment claim. Under city law, unlike under state and federal law, a plaintiff need not necessarily “show that the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment, ” Selmanovic, 2007 WL 4563431, at *4, but instead must show only “unwanted gender-based conduct.” Erasmus v. Deutsche Bank Americas Holding Corp., No. 15 Civ. 1398, 2015 WL 7736554, at *7 (S.D.N.Y. Nov. 30, 2015) (quoting Anderson v. N.Y.C. Hous. Auth., 872 N.Y.S.2d 27, 38 (App. Div. 1st Dep't 2009)). “[L]iability [under city law] should be determined by the existence of unequal treatment and questions of severity and frequency reserved for consideration of damages.” Selmanovic, 2007 WL 4563431, at *4.

         1.Hostile ...


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