DECISION AND ORDER The following e-filed documents, listed by NYSCEF document number 30-47 and 50 were read on this motion for summary judgment. In this action alleging sexual harassment/hostile work environment and gender discrimination in the workplace under New York State and New York City Human Rights Laws, defendants1 Compass Group USA (hereinafter Compass) and Bertrand Dulac move pursuant to CPLR §3212 for summary judgment dismissing the complaint. The plaintiff opposes the motion. After oral argument, as well as a review of the motion papers, relevant statutes, and governing case law, the motion is decided as follows. This action arises out of a series of incidents that the plaintiff alleges constitute sexual harassment and unlawful retaliation. Plaintiff alleges that, in April 2017, the plaintiff’s supervisor, defendant Bertrand Dulac, reached his hand into the plaintiff’s front left pants pocket in an attempt to take the plaintiff’s cell phone. The plaintiff alleges that he felt Mr. Dulac’s hand touch his penis and stated that he pushed Mr. Dulac’s hand away and told him to stop. In May 2017, the plaintiff alleges that Mr. Dulac picked up a ripe banana and said to plaintiff: “Mark, look at this banana. It is so big and juicy. It looks like a Jamaican banana. I like Jamaican bananas because they are always big and juicy.” See NYSCEF Doc. No. 44, p. 166. The plaintiff alleges that he believed the comments were referencing his penis, and that he felt shame, embarrassment, and humiliation as a result. In June 2017, the plaintiff alleged that Mr. Dulac told him to remove a towel from his back pocket because his “ass is big” and that he needs to “lose weight” because he is “getting too fat inside there.” Id. at p. 216. The plaintiff further alleges that on October 11, 2017, Mr. Dulac entered the locker room while the plaintiff was on break and attempted to forcefully remove the phone from plaintiff by holding on to plaintiff’s hand. The plaintiff also testified to another occasion where Mr. Dulac tried to forcefully remove the plaintiff’s phone from his hand in the hallway. On October 25, 2017, the plaintiff claims that while he was talking to a co-worker, Mr. Dulac told plaintiff that he was “flirting with a man.” Id. at p. 169. Plaintiff states that he reported this conduct to a man named “Steve” at Human Resources for the first time on or about October 31, 2017, and that he again spoke with Steve on November 8th. See NYSCEF Doc. No. 44, p. 28-29, 226. The plaintiff alleges in his complaint that Steve responded to him by saying something to the effect of ” I don’t see how this is harassment, but I’ll report your claim,” and further stated that the “ matter has been reported to the District Vice President and will be dealt with according to company policies.” See NYSCEF Doc. No. 43, p. 6. Plaintiff also alleges that no investigation was conducted, no disciplinary action was taken, and that plaintiff was forced to continue working under Mr. Dulac’s supervision. Id. Plaintiff further testified that on January 30, 2018, he complained of sexual harassment, sexual assault, gender discrimination, and retaliation through his attorneys in a pre-litigation letter sent to defendants. In support of their motion, the defendants offer, inter alia, the complaint, excerpts from the plaintiff’s deposition transcript, and copies of the plaintiff’s Performance Reviews from 2017 and 2018. The defendants argue that the plaintiff’s disparate treatment discrimination and retaliation claims should be dismissed, asserting that the plaintiff’s claims in this regard, which include receipt of a score of “33″ from Mr. Dulac on his 2017 performance evaluation as opposed to a “35″ for his performance in 2016 and threatened discipline based upon a false allegation of accepting tips from a non-worker following the filing of his NYS Division of Human Rights complaint, do not meet the standards for discrimination and/or retaliation. The defendants further argue that the plaintiff’s sexual harassment and hostile work environment claims should also be dismissed, contending that the alleged sexual harassment amounted to nothing more than Mr. Dulac’s attempts to take plaintiff’s phone away from him. Defendants further assert that there is no evidence that the alleged harassment was related to the plaintiff’s sex. In opposition, the plaintiff offers the pleadings, copies of deposition transcripts, and the affirmation of Mr. Dulac. Plaintiff asserts that he sets forth examples of sexual advances and the inappropriate touching of his genitals in his testimony. The plaintiff further contends that the conduct and comments of Mr. Dulac, including Mr. Dulac’s comment that plaintiff was flirting with men, constitute harassment in the workplace. Plaintiff argues that he suffered discrimination when he was forced to continue working under Mr. Dulac despite reporting his complaints to Compass’ human resources department. Summary judgment is a drastic remedy and may be granted only when it is clear that no triable issue of fact exists. Alvarez v. Prospect Hosp., 68 NY2d 320 (1986); see also Phillips v. Joseph Kantor & Co., 31 NY2d 307 (1972). The moving party is required to make a prima facie showing of entitlement to judgment as a matter of law, and evidence must be tendered in admissible form to demonstrate the absence of any material issues of fact. Alvarez at 324; see also Zuckerman v. City of New York, 49 NY2d 557 (1980). The papers submitted in the context of the summary judgment application are always viewed in the light most favorable to the party opposing the motion. Marine Midland Bank, N.A. v. Dino & Artie’s Automatic Transmission Co., 168 AD2d 610 (2d Dept 1990). If the prima facie burden has been met, the burden then shifts to the opposing party to present sufficient evidence to establish the existence of material issues of fact requiring a trial. CPLR §3212 (b); see also Alvarez at 324; Zuckerman at 562. Generally, the party seeking to defeat a motion for summary judgment must tender evidence in opposition in admissible form, and “mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient.” Zuckerman at 562. A plaintiff claiming a hostile work environment animated by discrimination in violation of the New York State Human Rights Law (hereinafter NYSHRL) must establish that the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the condition of the plaintiff’s employment and create an abusive work environment. Reichman v. City of New York, 179 AD3d 1115 (2d Dept 2020). “To determine whether a hostile work environment exists, a court must consider all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interfered with an employee’s work performance.” Id. at 1118; La Marca-Pagano v. Dr. Steven Phillips, P.C., 129 AD3d 918 (2d Dept 2015). The New York City Human Rights Law (hereinafter NYCHRL) is broader than its state law counterpart, and provides that a plaintiff claiming harassment/hostile work environment need only demonstrate that he or she was treated “less well than other employees” because of a characteristic protected by the NYCHRL, such as race, religion, or gender. Nelson v. HSBC Bank USA, 87 AD3d 995, 999 (2d Dept 2011) (adopting the standard set forth by the Appellate Division, First Department in Williams v. New York City Hous. Auth., 61 AD3d 62 (1st Dept 2009) for liability for causes of action alleging hostile work environment pursuant to the NYCHRL). The Court further recognized “an affirmative defense whereby defendants can still avoid liability if they prove that the conduct complained of consists of nothing more than what a reasonable victim of discrimination would consider petty slights and trivial inconveniences.” Nelson at 999, quoting Williams at 79-80. Moreover, the record must be examined as a whole to determine whether, in light of all the circumstances, the evidence supports a finding discriminatory intent. Sogg v. American Airlines, 193 AD3d 153 (1st Dept 1993). Viewing all the circumstances and facts in the light most favorable to the plaintiff, the defendant’s motion for judgment as a matter of law dismissing the plaintiff’s NYCHRL and NYSHRL claims for hostile work environment based on sexual harassment is denied. The plaintiff alleges that defendant Bertrand Dulac made physical contact with him and subjected him to inappropriate verbal comments from April 2017 through October 31, 2017. There are issues of fact as to whether the incidents alleged by the plaintiff, which took place over the course of seven months, created an abusive working environment. In this case, the defendants fail to establish an entitlement to summary judgment, as issues of fact exist with regard to whether a reasonable victim of discrimination would consider plaintiff’s allegations nothing more than petty slights and trivial inconveniences. See Williams at 62. Turning to plaintiff’s causes of action alleging unlawful retaliation, NYSHRL §296(7) states that “[it] shall be an unlawful discriminatory practice for any person engaged in any activity to which this section applies to retaliate or discriminate against any person because he or she has opposed any practices forbidden under this article…” A plaintiff alleging retaliation in violation of the state law must establish that “(1) he or she engaged in a protected activity by opposing conduct prohibited thereunder; (2) the defendant was aware of that activity; (3) he or she suffered an adverse action based upon his or her activity; and (4) there was a causal connection between the protected activity and the adverse reaction.” Reichman, 179 AD3d at 1119. Furthermore, the Court of Appeals has stated: An adverse employment action requires a materially adverse change in the terms and conditions of employment. To be materially adverse, a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation. Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 306 (2004), quoting Galabya v. New York City Bd. of Educ., 202 F3d 636 (2d Cir 2000) (internal quotation marks omitted). The Appellate Division, Second Department, has further defined an adverse employment action as “one which might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Reichman at 1119, quoting Keceli v. Yonkers Racing Corporation, 155 AD3d 1014 (2d Dept 2017). Furthermore, NYSHRL §296(7) does not protect the individual from all retaliation, but only retaliation that produces an injury or harm. Reichman at 1119. As with hostile work environment claims, the NYCHRL offers broader protection than its state law companion. Reichman at 1119. A plaintiff alleging retaliation in violation of the NYCHRL must show that: (1) he or she engaged in a protected activity as that term is defined under the NYCHRL, (2) his or her employer was aware that he or she participated in such activity, (3) his or her employer engaged in conduct which was reasonably likely to deter a person from engaging in that protected activity, and (4) there is a causal connection between the protected activity and the alleged retaliatory conduct. Id. at 1119 (internal quotation marks omitted). A plaintiff need not establish that the alleged retaliation or discrimination resulted in a “materially adverse change in the terms and conditions of employment” so long as the plaintiff can show that the retaliatory or discriminatory act was reasonably likely to deter a person from engaging in protected activity. See Brightman v. Prison Health Serv., Inc., 108 AD3d 739, 739 (2d Dept 2013). However, at trial, the plaintiff still bears the ultimate burden of establishing a prima face case of retaliation under the NYCHRL. Id. at 740. Once the plaintiff has met their burden at trial, the burden then shifts to the defendant to present legitimate, independent and nondiscriminatory reasons to support its actions. Id. If the defendant succeeds in meeting this burden, then the plaintiff has the obligation to establish that the reasons put forth by the defendant were merely a pretext. Id. “To establish its entitlement to summary judgment in a retaliation case, a defendant must demonstrate that the plaintiff cannot make out a prima facie claim of retaliation or, having offered legitimate, nonretaliatory reasons for the challenged actions, that there exists no triable issue of fact as to whether the defendants’ explanations were pretextual.” Id. at 740-741. The defendants claim that the plaintiff has abandoned the retaliation claim as plaintiff’s opposition papers are silent on the issue. At oral argument, when the Court asked counsel for plaintiff about what specific adverse employment action was taken against the plaintiff, counsel agreed that there had been no termination, no demotion, no suspension, or any other “classic adverse employment action” and had no other response other than that the alleged retaliatory action was simply the hostile work environment that plaintiff was subjected to. See Oral Argument Transcript dated March 10, 2021, p. 8. As a result, the plaintiff cannot show that he suffered an adverse employment action or that the defendant engaged in conduct which was reasonably likely to deter a person from engaging in protected activity sufficient to support his claim for retaliation. Although the plaintiff argues that he received a performance evaluation for his work in 2017 that was two points lower than the performance evaluation he received in 2016, this does not rise to the level of adverse employment action. For the 2016 year, the plaintiff received a rating of “35″ out of “40″ (which qualified for an “outstanding” total rating). When the plaintiff’s performance for 2017 was reviewed on January 25, 2018, the plaintiff received a “33″ out of “40″ (which qualified for an “above target” total rating). For the purposes of assessing adverse employment action, this two-point difference is immaterial in that no negative or disadvantageous consequence followed as a result of this performance evaluation. The record establishes that the plaintiff did not experience any decrease in salary, never received a poor performance evaluation, was never disciplined, was never demoted, and was never transferred to a position that he did not want. Furthermore, to the extent that the complaint alleges that Compass CEO Gary Green had plaintiff falsely accused of accepting tips for delivering buckets of ice to a non-coworker, this is mere speculation as he was never disciplined as a result of these allegations. There is also no evidence that the plaintiff even heard any threats of discipline or termination related to this alleged incident. As the plaintiff has failed to raise a triable issue of fact with regard to the NYSHRL and NYCHRL retaliation claims, the defendants are entitled to summary judgment dismissing plaintiff’s retaliation claims. The remaining contentions are without merit. Accordingly, it is hereby ORDERED, that the defendants’ motion for summary judgment is GRANTED to the extent that the plaintiff’s retaliation claims are dismissed; and it is further ORDERED, that the defendants’ motion is in all other respects DENIED. This constitutes the decision and order of the Court. Dated: June 8, 2021
