Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Suri v. Grey Global Group, Inc.

Supreme Court of New York, First Department

August 2, 2018

Rachana Suri, Plaintiff-Appellant,
v.
Grey Global Group, Inc., et al., Defendants-Respondents,

          Michael G. O'Neill, New York, for appellant.

          Davis & Gilbert LLP, New York (Jessica Golden Cortes and Nirupama S. Hegde of counsel), for respondents.

          David Friedman, J.P. Marcy L. Kahn Cynthia S. Kern Jeffrey K. Oing Peter H. Moulton, JJ.

          DECISION AND ORDER

          MOULTON JUDGE

         Plaintiffs appeals from the order of the Supreme Court, New York County (Donna M. Mills, J.), entered, which, insofar as appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing the claims for employment discrimination, sexual harassment, and hostile work environment under the New York State and City Human Rights Laws.

         Plaintiff Rachana Suri brings this appeal after Supreme Court granted defendants' motion for summary judgment and dismissed her complaint in its entirety. Supreme Court correctly dismissed most of Suri's claims. However, it erred in dismissing Suri's claim that she was discriminated against because she rebuffed the sexual advance of Pasquale Cirullo, her immediate supervisor. Suri offers evidence that after this alleged incident Cirullo's behavior toward her turned from affable to malignant, and her workplace became a hostile environment. As discussed below, this evidence is sufficient to create a triable issue of fact concerning her gender discrimination claim under the City Human Rights Law.

         We first summarize the claims that Supreme Court correctly found could not survive defendants' motion for summary judgment. We agree that Supreme Court properly dismissed Suri's claims that she was terminated from her employment on account of her gender or ethnicity in violation of the State and City Human Rights Laws. In response to defendants' assertion that Suri's position was eliminated and that she was terminated as part of a corporate reorganization and reduction in force, Suri pointed to no evidence showing that her termination was motivated by discrimination (see Cadet-Legros v New York Univ. Hosp. Ctr., 135 A.D.3d 196, 200 n 1, 202 [1st Dept 2015]; Bennett v Health Mgt. Sys., Inc., 92 A.D.3d 29, 41 [1st Dept 2011], lv denied 18 N.Y.3d 811');">18 N.Y.3d 811 [2012]). Suri's employer's decision to terminate her was not made by Cirullo, nor was it made in consultation with him. Suri's contention that she was replaced by two white men does not support her claim that her termination was discriminatory. The individuals that she identified performed duties that mostly did not overlap with hers. [1]

         Supreme Court correctly rejected Suri's discrimination claim based on an alleged failure to promote her. While Cirullo was hired for a supervisory position to which Suri had also applied, she makes no showing that the decision was gender-based and all the record evidence is to the contrary.

         In addition, we agree with Supreme Court that Suri did not point to any evidence that her employer discriminated against her because she was Indian. Cirullo's single, isolated comment that she had "dark" skin under the circumstances alleged was a "stray remark[]" that does not support an inference of discrimination (Hudson, 138 A.D.3d at 517; Melman v Montefiore Med. Ctr., 98 A.D.3d 107, 125 [1st Dept 2012]).

         However, while Supreme Court properly dismissed Suri's gender discrimination claim under the State Human Rights Law, Supreme Court erred in dismissing Suri's claim under the more broadly protective City Human Rights Law (see Hernandez v Kaisman, 103 A.D.3d 106');">103 A.D.3d 106, 114 [1st Dept 2012]). Suri offers evidence that Cirullo used his position to implicitly demand sexual favors, and, when she rebuffed him, to explicitly make her life miserable for the next 18 months. By this evidence Suri demonstrated that there are triable issues of fact concerning her claim under Administrative Code of City of NY § 8-107(1)(a).

         Suri states that she began reporting to Cirullo in October 2008. She asserts that on Cirullo's first day as Senior Vice President, he walked into her office and told her she had beautiful hair. The next day he told her that she had really nice boots. Suri claims that about one week later, when she sat next to Cirullo at a meeting, he put his hand on her thigh, close to her knee, and squeezed lightly for a few seconds. Suri explains that she immediately moved away. She understood Cirullo's behavior as a sexual overture.

         After this meeting, Suri claims that Cirullo's behavior towards her changed. According to Suri he dismissed her work; talked over her; put his hand in her face when she was talking; criticized, belittled and mocked her in front of other employees; cut her out of meetings; withheld resources; and delayed one of her projects. For the last six months of her employment, Cirullo stopped talking to her, even though he sat next to her. She also maintains that because Cirullo mistreated her, other employees followed along believing that it was permissible to disrespect her.

         Suri explains that she only complained about the overture to her friends. However, she complained to the Executive Vice President in March 2009 that Cirullo cut her out of meetings. According to Suri, after the Executive Vice President intervened, Cirullo briefly relented and invited her to a few meetings. However, Cirullo soon resumed cutting her out of meetings and emails. Suri maintains that after she objected, Cirullo gave her the task of setting up the very same meetings to which she was not invited. In May or June 2009, Suri states that she complained to the human resources manager that Cirullo pulled her on and off projects and left her with no resources on one project. According to Suri, the human resources manager responded "that that's how men are and we have to tiptoe around their egos and this is a male-dominated world and we already know we work twice as hard as they do with less pay." As a result of this complaint, Suri explains that the manager requested that Cirullo create a new job description for her. Cirullo did so, but three days after the complaint, he removed her from a project.

         Suri claims that as a result of the treatment inflicted by Cirullo and his followers, she developed gastrointestinal problems, lost significant weight, and required mental health counseling.

         Cirullo denies complimenting Suri's appearance and squeezing her leg. He also contends that he treated all of his direct reports the same way and that, at worst, the behavior alleged by Suri just paints a portrait of a bad manager. Cirullo also maintains that even if Suri's allegations are true, the incidents amount to nothing more than petty slights or trivial inconveniences. Cirullo also takes issue with Suri's characterization of his hostility towards her, pointing to emails as evidence that they had a cordial relationship. He also maintains that she was too sensitive to her colleagues' tone, and attributed that sensitivity to her family issues.

         The City Human Rights Law

         The City Human Rights Law is codified in title 8 of the Administrative Code (§ 8-101 et seq.). As is relevant to this action, Administrative Code § 8-107(1)(a) prohibits "[u]nlawful discriminatory practices" and provides that it is unlawful:

"(a) For an employer or an employee or agent thereof, because of the actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, caregiver status, sexual orientation, uniformed service or alienage or citizenship status of any person:
"(1) To represent that any employment or position is not available when in fact it is available;
"(2) To refuse to hire or employ or to bar or to discharge from employment such person; or
"(3) To discriminate against such person in compensation or in terms, conditions or privileges of employment" (Administrative Code § 8-107{1}[a][1], [2], [3]).

         In 2005, the City Council passed the Local Civil Rights Restoration Act of 2005 (Local Law No. 85 [2005] of City of NY § 1), finding that the provisions of the City Human Rights Law had been "construed too narrowly to ensure protection of the civil rights of all persons covered by the law." The Restoration Act revised the City Human Rights Law (Administrative Code § 8-130[a]) to state:

         "The provisions of this title shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions worded comparably to provisions of this title, have been so construed."

         In Williams v New York City Hous. Auth., in an opinion by Justice Acosta, we found that "the text and legislative history [of the Restoration Act] represent a desire that the City HRL meld the broadest vision of social justice with the strongest law enforcement deterrent" (61 A.D.3d 62, 68 [1st Dept 2009] [internal quotation marks omitted], lv denied 13 N.Y.3d 702');">13 N.Y.3d 702 [2009]). The Court of Appeals has also emphasized that all provisions of the City Human Rights Law should be construed "broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible" (Albunio v City of New York, 16 N.Y.3d 472, 477-478 [2011]).

         In Williams we also dispensed with the need for much of the nomenclature that has accreted over the years in gender discrimination jurisprudence, such as "sexual harassment" and "quid pro quo," and instead focused on "the existence of differential treatment" in connection with "unwanted gender-based conduct" (Williams, 61 A.D.3d at 75, 76). We explained:

         "Despite the popular notion that sex discrimination' and sexual harassment' are two distinct things, it is, of course, the case that the latter is one species of sex- or gender-based discrimination. There is no sexual harassment provision' of the law to interpret; there is only the provision of the law that proscribes imposing different terms, conditions and privileges of employment based, inter alia, on gender" (id. at 75).

         Thus, to establish a gender discrimination claim under the City Human Rights Law, a plaintiff need only demonstrate "by a preponderance of the evidence that she has been treated less well than other employees because of her gender" (id. at 78) [2]. We also found that the federal and state law, limiting actionable sexual harassment to "severe or pervasive" conduct, was not appropriate for the broader and more remedial City Human Rights Law (id. at 75-81). Instead, we recognized an affirmative defense whereby defendants can avoid liability if the conduct amounted to nothing more than what a reasonable victim of discrimination would consider "petty slights and trivial inconveniences" (id. at 80). [3]

         In our view, the dissent's approach does not serve the broad remedial purpose of the City Human Rights Law. The dissent errs in parsing Suri's third cause of action into two claims: hostile work environment and sexual harassment, and then separately analyzing each claim as if they were unrelated. The dissent concludes that Cirullo's and Suri's coworkers' alleged mistreatment of her over an 18-month period far exceeded "petty slights." Nevertheless, the hostile work environment claim fails, the dissent concludes, because there is no evidence that the mistreatment was sexually motivated. In doing so, the dissent disregards Cirullo's alleged sexual overture (which is analyzed separately) and the temporal proximity between the alleged overture and the alleged 18-month period of mistreatment.

         The dissent separately analyzes Cirullo's alleged overture as a sexual harassment claim, rejecting Suri's argument that it should be considered in connection with the 18-month period of mistreatment that followed. The dissent concludes that unlike the behavior over the 18-month period, the two compliments and the thigh squeeze amounted to nothing more than "petty slights." This conclusion is built upon the dissent's finding that Suri did not produce "some evidence" sufficient to raise an issue of fact as to whether Cirullo suggested a sexual relationship. In doing so, however, the dissent discounts Suri's own testimony.

         The dissent erroneously rejects Suri's argument that her claim should be viewed holistically, finding that to do so improperly conflates or resurrects Suri's claims. The City Human Rights Law speaks to unequal treatment and does not distinguish between sexual harassment and hostile work environment. It contains no prohibition on conflating claims [4]. Rather the "overall context in which [the challenged conduct occurs] cannot be ignored" (Hernandez, 103 A.D.3d at 115).

         Viewing the claim holistically, as we must, defendants are not entitled to summary judgment under the City Human Rights Law. The jury must decide whether Cirullo made a sexual overture, and whether Cirullo created a hostile work environment because Suri rebuffed that overture [5]. Sexual advances are not always made explicitly. The absence of evidence of a supervisor's direct pressure for sexual favors as a condition of employment does not negate indirect pressure or doom the claim (see Gallagher v Delaney, 139 F.3d 338, 346 [2d Cir 1998] [jury must decide whether the plaintiff experienced a hostile work environment in violation of federal and state law where the plaintiff's supervisor never directly asked her to engage in sexual relations and never specifically conditioned her employment on accepting his gifts, offers, and signs of affection]).

         Admittedly, that Cirullo did not expressly demand sex or engage in sexually charged conversations makes the facts of this case more equivocal than those of some of our precedents. However, "[i]t is not the province of the court itself to decide what inferences should be drawn...; if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper" (Vivenzio v City of Syracuse, 611 F.3d 98, 106 [2d Cir 2010] [internal quotation marks omitted]).

         It is a jury's function to determine what happened between Cirullo and Suri, and whether it amounted to gender discrimination. If it credits plaintiff's account of two "compliments" followed within approximately one week by her supervisor's palm on her thigh, and her description of how her treatment at the workplace deteriorated in the wake of these incidents, then a jury could find that such behavior did not constitute "petty slights or trivial inconveniences" (Williams at 80; compare Ji Sun Jennifer Kim v Goldberg, Weprin, Finkel, Goldstein, LLP, 120 A.D.3d 18');">120 A.D.3d 18, 25 [1st Dept 2014]).

         Thus, in our view, Suri sufficiently raises an issue of fact as to whether she was "treated less well than other employees because of her gender" (Williams, 61 A.D.3d at 78) in violation of Administrative Code § 8-107(1)(a).

         The Bennett Burden-Shifting Framework

         While we agree with the dissent's application of this framework to the wrongful termination and failure to promote aspects of Suri's claim under the City Human Rights Law (see Bennett, 92 A.D.3d at 29; see also Watson v Emblem Health Servs., 158 A.D.3d 179');">158 A.D.3d 179 [1st Dept 2018]; Hudson v Merrill Lynch & Co., 138 A.D.3d at 511), burden-shifting analysis does not apply to Suri's claim that Cirullo tacitly sought sexual favors from her, and treated her as a pariah for the next 18 months after she rebuffed him. [6]

         The dissent cites to three of our prior decisions in order to buttress the position that the Bennett burden-shifting test applies to this claim (see Arifi v Central Moving & Stor. Co., Inc., 147 A.D.3d 551');">147 A.D.3d 551 [1st Dept 2017]; Kim, 120 A.D.3d at 18; Chin v New York City Hous. Auth., 106 A.D.3d 443');">106 A.D.3d 443 [1st Dept 2013], lv denied 22 N.Y.3d 861');">22 N.Y.3d 861');">22 N.Y.3d 861');">22 N.Y.3d 861 [2014]). The dissent's reliance on these three cases is misplaced.

         In both Arifi and Kim, we did not apply the Bennett burden-shifting analysis to the plaintiffs' hostile work environment claims under the City Human Rights Law, although we applied the test to the plaintiffs' termination claims (Arifi, 147 A.D.3d at 551; Kim, 120 A.D.3d at 26). Our disagreement with the dissent, however, is not with the application of the Bennett burden-shifting test to Suri's termination or failure to promote claims. Rather, it is with respect to the application of the Bennett test to Suri's claim that she suffered a hostile work environment as the result of rejecting Cirullo's alleged sexual advance.

         In Arifi, the plaintiff's hostile work environment claim failed because the plaintiff did not demonstrate that age discrimination was one of the motivating factors for the employer's hostile conduct (Arifi, 147 A.D.3d at 551). In Kim, the plaintiff's hostile work environment claim failed because the conduct at issue amounted to nothing more than "petty slights and trivial inconveniences" (Kim, 120 A.D.3d at 26 [internal quotation marks omitted]). Similarly, in Chin, the plaintiff's hostile work environment claim failed for reasons unrelated to the Bennett burden-shifting test - a test that was not applied to that claim. Although we applied the Bennett burden-shifting test in Chin to the plaintiff's failure to promote claim, the plaintiff's hostile work environment claim failed because the plaintiff did not demonstrate that she was treated less well than other employees because of her protected status or that discrimination was one of the motivating factors for the defendant's conduct (Chin, 106 A.D.3d at 444-445).

         In our view, the dissent mistakenly applies the Bennett burden-shifting test to Suri's claim that Cirullo tacitly sought sexual favors from her, and mistreated her after she rebuffed him. In Bennett we weighed the applicability of the three-step burden-shifting framework set forth in McDonnell Douglas Corp. v Green (411 U.S. 792 [1973]) to a summary judgment motion under the City Human Rights Law, where a plaintiff alleged wrongful termination [7]. We concluded that:

"[o]n a motion for summary judgment, defendant bears the burden of showing that, based on the evidence before the court and drawing all reasonable inferences in plaintiff's favor, no jury could find defendant liable under any of the evidentiary routes: under the McDonnell Douglas test, or as one of a number of mixed motives, by direct or circumstantial evidence" (Bennett, 92 A.D.3d at 41). [8]

         Although we noted that a central purpose of the City Human Rights Law "was to resist efforts to ratchet down or devalue the means by which those intended to be protected by the City [Human Rights Law] could be most strongly protected" and "[t]hese concerns warrant the strongest possible safeguards against depriving an alleged victim of discrimination of a full and fair hearing before a jury of her peers by means of summary judgment," we nevertheless found that the defendants were properly granted summary judgment (id. at 44). We found that the employer justified its "adverse action" of termination because the plaintiff put forth no evidence that the defendants' explanations for terminating him were pretextual, or any evidence of a mixed motive. [9]

         Notably, however, Bennett did not involve a claim for differential treatment resulting in a hostile environment. Our post- Williams cases demonstrate that courts should not automatically apply the Bennett burden-shifting framework to every aspect of a plaintiff's City Human Rights Law claim (see e.g. Kim, 120 A.D.3d at 18). In Kim, we applied the Bennett framework to a plaintiff's claim that she was terminated in retaliation for engaging in a protected activity, and we found triable issues of fact as to whether the employer's workforce reduction was a pretext for that termination (see id. at 25). However, in Kim we did not apply burden-shifting to that aspect of the plaintiff's claim arising out of a hostile workplace (id. at 26). Instead, we focused on whether a reasonable person would consider the conduct nothing more than petty slights and trivial inconveniences (id. at 26). We found that the claim, arising from one inappropriate gender-based comment and a reprimand for reading a book, should be dismissed because a reasonable person would consider the conduct nothing more than petty slights and trivial inconveniences (id.). Similarly, in Hernandez (103 A.D.3d at 106), where the issue of termination was not before us, we did not apply the Bennett test in concluding that summary judgment should be denied under the City Human Rights Law based on comments and emails which objectified women's bodies. Instead, we considered the totality of the circumstances, and, using a reasonable person standard, determined whether the behavior fell within the broad range of conduct between severe and pervasive on the one hand and petty slight or trivial inconvenience on the other (see Hernandez, 103 A.D.3d at 114-115 [internal quotation marks omitted]). [10]

         In addition to the fact that cases such as Kim and Hernandez have not applied the Bennett burden-shifting framework to every aspect of a gender discrimination claim, we find the reasoning in Mihalik v Credit Agricole Cheuvreux N.A., Inc. (715 F.3d 102');">715 F.3d 102 [2d Cir 2013]) persuasive. In that case, the Second Circuit analyzed a plaintiff's claim of gender discrimination and retaliation under the City Human Rights Law (id. at 107). The plaintiff alleged that she was subjected to suggestive comments and was propositioned for sex. After she refused her CEO's advances, she claimed that the CEO retaliated by excluding her from meetings, berating her in front of other employees, criticizing her work, and ultimately firing her (id. at 106-108).

         In reversing the District Court's grant of summary judgment to the defendants, the Second Circuit criticized the District Court for considering the plaintiff's gender discrimination claim under a quid pro quo analysis and hostile work environment analysis (id. at 114). Under the City Human Rights Law, the Second Circuit observed, differential treatment may be actionable even where the treatment does not result in an employee's discharge. Williams made clear that the City Human Rights Law focuses on unequal treatment regardless of whether the conduct is "tangible" like hiring or firing (id.). Thus, even assuming that a plaintiff could not prove that she was dismissed for a discriminatory reason, she could still recover for other differential treatment based on her gender (id.). Notably, the Second Circuit observed that "[e]ven a poorly-performing employee is entitled to an environment free from sexual harassment" and that poor performance would not excuse alleged sexual advances and demeaning behavior (id.).

         Therefore, while the Second Circuit applied the Bennett burden-shifting test to that part of the claim alleging wrongful termination, it declined to apply the framework to the alleged sexual advances and subsequent demeaning conduct (id.). Instead, drawing all reasonable inferences in the plaintiff's favor, the Second Circuit found that it could not conclude, as a matter of law, that there was no causal connection between the rejections of sexual advances and the supervisor's subsequent demeaning conduct.

         Similarly, viewing the evidence in a light most favorable to Suri, we cannot conclude as a matter of law that Cirullo did not tacitly condition the terms, conditions or privileges of Suri's employment on submission to his alleged sexual overture and thereafter create a hostile work environment after she rejected him. That behavior would not be petty or trivial. Issues of fact exist for the jury as to whether Suri was treated less well because of her gender, in violation of Administrative Code § 8-107(1)(a).

         Accordingly, the order of the Supreme Court, New York County (Donna M. Mills, J.), entered, which, insofar as appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing the claims for employment discrimination, sexual harassment, and hostile work environment under the New York State and City Human Rights Laws, should be modified, on the law, to deny the motion as to plaintiff's claim under the City Human Rights Law in connection with her assertion that she rejected ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.