Appellate Division, First Department at 27 Madison Ave. Photo: David Handschuh/NYLJ

A state appeals court has reversed the dismissal of a former nursing supervisor's gender discrimination claim brought under city's Human Rights Law—pointing out the contradiction of a lower court dismissing that claim while allowing a related hostile-work-environment-due-to-sexual-harassment claim to go forward.

"The [lower] court should not have dismissed the claim of gender discrimination while sustaining the claim of hostile work environment due to sexual harassment," an Appellate Division, First Department panel wrote in its opinion in Crookendale v. New York City Health and Hospitals issued Tuesday.

"The [New York] City HRL does not differentiate between sexual harassment and other forms of gender discrimination, but requires that 'sexual harassment' be viewed as 'one species of sex- or gender-based discrimination,'" the panel continued, quoting Williams v. New York City Hous. Auth.

The unanimous panel pointed out that both claims had been brought under the Human Rights Law as part of plaintiff Debra Crookendale's 2015-filed lawsuit against New York City Health and Hospitals Corp. In her suit, Crookendale asks for compensatory damages of $5 million. And she alleges, among other things, that for roughly a year and a half—until she left her job unwillingly in 2014—a female superior at a Queens hospital groped her and asked her out repeatedly, exposed herself to Crookendale, commented on her looks and smell, and retaliated against her at the workplace when she wouldn't comply with the superior's many advances, according to court documents.

In its opinion Tuesday, the First Department panel affirmed Manhattan Supreme Court Justice Alexander Tisch's 2018 dismissal of Crookendale's lawsuit claims of constructive discharge and retaliation.

But the panel, composed of Justices David Friedman, Peter Tom, Barbara Kapnick and Marcy Kahn, reversed Tisch's dismissal—made in the same decision and order—of Crookendale's broad Human Rights Law claim of gender discrimination.

Addressing the gender discrimination claim, and why sufficient evidence to defeat summary judgment dismissal had been shown, the panel wrote that "in her affidavit in opposition to defendant's [Health and Hospitals Corp.'s] motion, [Crookendale] sufficiently described being touched and complimented inappropriately to permit a jury reasonably to find that she was treated 'less well' than her male colleagues because of her gender and that the conduct complained of was neither petty nor trivial," citing Hernandez v. Kaisman.

In his decision, Tisch pointed out that Crookendale—a former U.S. Army Captain—contended that Marie Hyppolite, a former direct nursing supervisor at Queens Hospital Center, would harass her continuously but that allegedly there were not direct witnesses. Tisch added that Crookendale alleged that Hyppolite retaliated against her by taking actions such as manipulating staffing levels to make her appear to be an unsatisfactory manager, giving a negative evaluation, and working to get her dismissed.

Tisch wrote in part, in regard to Crookendale's gender discrimination claim, that while certain prongs of the claim were met "plaintiff cannot establish a prima facie case however, because she fails to demonstrate an adverse employment action," as he explained why allegations of constructive discharge failed.

Queens Hospital Center, where Crookendale worked, is part the Health and Hospitals Corp., which is said to be the largest municipal health care organization in the nation.

The city law department represents Health and Hospitals Corp. in the action.

Eric Eichenholtz, division chief of labor and employment at the law department, said, "We appreciate the court recognizing that the plaintiff's constructive discharge and retaliation claims were meritless and should be dismissed. We will review the decision and determine the next steps concerning the gender-based claims."

Brian Heller of Schwartz Perry & Heller in Manhattan, who represented Crookendale in the appeal, according to the panel's opinion, could not be reached for comment.