Opinion
03/2198
Decided May 20, 2005.
Van Henri White, Esq., Rochester, NY, Attorney for Plaintiff.
Wolford LeClair LLP, Elizabeth A. Wolford, Esq., Rochester, NY.
Thomas D. Calandra, Esq., Attorney for Defendant Paris Charles, Jr., Brockport, NY, Attorneys for Defendant Eastman Kodak Company.
Plaintiff commenced this action alleging several causes of action against the respective defendants based on the alleged conduct of a co-employee, defendant-Charles, committed against plaintiff during their employment on defendant-Kodak's property. He now seeks summary judgment against both defendants, and defendant-Kodak cross-moves for summary judgment dismissing plaintiff's complaint.
Kodak's cross-motion is granted in part without opposition as to plaintiff's claims for (1) intentional infliction of emotional distress, as barred by the one-year statute of limitations (CPLR 215), and his (2) three negligence-based claims, as barred by the Workers' Compensation Law applicable for plaintiff-employee and Kodak-employer. Dismissal of plaintiff's sole remaining cause of action against Kodak, for sexual harassment based on New York State Executive Law § 296, is denied as issues of fact exist for trial. Similarly, existing issues of fact also require denial of plaintiff's motion for partial summary judgment on liability as to Kodak and defendant-Charles.
To establish sexual harassment in violation of Executive Law § 296 based on a hostile work environment, plaintiff must prove that: (1) he belongs to a protected group; (2) he was the subject of unwelcome sexual harassment; (3) the harassment was based on his sex; (4) the sexual harassment affected a term, condition or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take remedial action. See Yukoweic v. International Business Machines, Inc., 228 AD2d 775. The evidentiary standards under Executive Law § 296 are the same as Federal standards under 42 U.S.C. 2000-e, or Title VII, for sex discrimination claims. See Walsh v. Covenant House, 244 AD2d 214. Same-sex sexual harassment claims are covered by Title VII. However, "[W]orkplace harassment, even harassment between men and women, is [not] automatically discrimination because of sex merely because the words used have sexual content or connotations. `The critical issue, Title VII's text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.'" Oncale v. Sundowner Offshore Servs., Inc., 523 US 75, 80 (citation omitted). Thus, just as in opposite-sex situations, a same-sex harassment plaintiff must demonstrate that he or she was harassed on the basis of his or her sex. The Supreme Court has indicated that, in opposite-sex harassment cases, the inference of discrimination based on sex is easier to draw, because "the challenged conduct typically involves explicit or implicit proposals of sexual activity", and "it would be reasonable to assume those proposals would not have been made to someone of the same sex." As to the evidence which a same-sex plaintiff may present to demonstrate discrimination on the basis of sex, the Supreme Court held: "The same chain of inference would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual. But harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. A trier of fact may reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace. A same-sex harassment plaintiff may also, of course, offer direct com-parative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace. Whatever evidentiary route the plaintiff chooses to follow, he or she must also prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted `discrimination because of sex'". Id. at 80-81 (citation omitted).
On its cross motion, Kodak basically claims that even assuming all of plaintiff's allegations against both defendants to be true, and affording to plaintiff the benefit of all reasonable and favorable inferences, the evidence, nevertheless, fails to meet the requisite criteria for plaintiff to establish his same-sex sexual harassment claim based on Section 296 of the New York Executive Law, specifically, the element that he was harassed because he was male. There was no evidence presented as to whether defendant Charles was homosexual, or that he was otherwise motivated by a sexual desire for plaintiff. In fact, plaintiff testified that he did not get the impression that Charles was making sexual advances at him. Further, there is no evidence that Charles was motivated by a general hostility toward men in the workplace. However, the ratio of men to women working under plaintiff's immediate supervisor about the time of defendant-Charles' alleged harassment of plaintiff was 80%-20%, which allows for plaintiff to establish his case through comparative evidence. Applying, as required, the foregoing assumptions of truth and all favorable inferences in plaintiff's favor, the evidence establishes that defendant-Charles' alleged offensive conduct was significantly greater both qualitatively and quantitatively against male employees than female employees. Viewing the evidence in a light most favorable to plaintiff, although defendant-Charles' conduct against women was clearly offensive, the frequency of such offensive conduct and the degree and extent of such offensiveness was significantly less than that committed against men. The instances of defendant-Charles' physical contact with co-workers, such as the poking and grabbing of private areas and the jamming of markers into rectal areas, was regularly committed against men, but never against women, as demonstrated by a reading of the various deposition testimony transcripts in plaintiff's favor. "On this record, with all of the facts and inferences drawn in [plaintiff's] favor, a fact-finder could reasonably conclude that the treatment of men at [Kodak] was worse than the treatment of women." Quick v. Donaldson Co., Inc. v. Quick, 90 F3d 1372, 1379 (8th Cir. 1996) Accordingly, there are issues of fact as to whether plaintiff was harassed because he was a male, on the basis of one of the tests for same-sex harassment cases discussed in Oncale (supra), and these issues of fact preclude granting Kodak's motion for summary judgment as to plaintiff's cause of action. See Quick, supra, at 1378 ("Evidence that members of one sex were the primary targets of the harassment is sufficient to show that the conduct was gender based for purposes of summary judgment").
Plaintiff's motion for partial summary judgment against Kodak is denied, because the parties' papers raise questions of fact as to the second, third, fourth, and fifth elements of plaintiff's sexual harassment claim. Finally, the defendant-Charles, in his testimony, denies plaintiff's allegations as to his offensive conduct against plaintiff and that is sufficient to require denial of the plaintiff's motion as against defendant-Charles.
Now, therefore, upon due consideration, it is hereby
ORDERED that plaintiff's motion for partial summary judgment is denied in its entirety; and it is further
ORDERED that Eastman Kodak Company's cross motion for summary judgment is granted in part to the extent of dismissing plaintiff's second and third causes of action against Eastman Kodak Company; and it is further
ORDERED that Eastman Kodak Company's cross motion for summary judgment is denied with respect to plaintiff's first cause of action.