Plaintiff was employed as a consultant at Petrarch, an antique art gallery located at 47 East 66th Street, New York, New York, from May until approximately May Aboutaam is an owner and the President of Petrarch. Plaintiff alleges that in Septemberwhile at an art fair in Paris, defendant Aboutaam came to plaintiff's hotel room, grabbed her and demanded that she sleep with him and then forcibly kissed her.
Plaintiff further alleges that on numerous occasions during her employment, defendants' clients who came into the art gallery, "openly questioned Plaintiff about her "Hicham aboutaam sexual harassment" life" in the presence of Aboutaam and that Aboutaam "joined, condoned and acquiesced in the hostile environment by laughing at the comments" id. The alleged harassment culminated in Marchwhen, in Aboutaam's presence, a client asked plaintiff and her co-worker Karen Simons "sexual questions.
The next day, Aboutaam reprimanded plaintiff for "bailing" on him id. Plaintiff also alleges that she was subject to verbal abuse by another employee, Ms.
Simons, who repeatedly told her she "hated" her and "could not work with her" id. Plaintiff alleges that she was constructively discharged as she had no choice but to leave the intolerable work conditions. Defendants now move to dismiss these claims. In support of their motion, defendants argue that plaintiff fails to state a cause of action for harassment or hostile work environment under NYSHRL. The alleged conduct is not so "severe or pervasive" as to create an actionable hostile or abusive environment.
After the single and isolated incident in Paris, plaintiff continued working for Aboutaam without complaining about it or about any other alleged instances of purported sexual harassment, for approximately 20 months until she Hicham aboutaam sexual harassment left in May The vague allegations about Petrarch's clients who "openly questioned plaintiff about her sex life" lack specificity.
And, plaintiff cannot establish a sex-based hostile work environment based on her co-worker Simons's hostility towards her, because plaintiff does not allege that such hostility had anything to do with her sex or gender. Although this statute does not require that sexual harassment be "severe and pervasive" to be actionable, the alleged conduct during the Paris incident was trivial as it did not stop plaintiff from continuing her employment with the company for another 20 months thereafter.
And, the vague complaints about unspecified client's comments are no more than ordinary, everyday conversation. Further, plaintiff fails to
Hicham aboutaam sexual harassment allege constructive discharge, i. Furthermore, plaintiff does not allege that she complained and the company did nothing. Plaintiff likewise failed to plead any facts in support of her claim for retaliation, Hicham aboutaam sexual harassment she merely alleges in paragraph 1 of the Complaint that this action is for sex discrimination and retaliation.
Plaintiff did not allege that she engaged in any protected activity, i. And in any event, Phoenix should be dismissed from this action because it wasnot plaintiff's employer. As shown in plaintiff's Forms and W-2 and in the application for unemployment benefits, she was employed by Petrarch, Phoenix's agent. Finally, defendants seek attorneys' fees pursuant to NYC Administrative Code fas a prevailing party. Plaintiff Hicham aboutaam sexual harassment pleaded a hostile environment based on Aboutaam's conduct in the Paris hotel and the comments from clients about her sexual activity.
After dealing with sexual comments for two years, plaintiff eventually resigned. Furthermore, NYCHRL's standard for sexual harassment is not as stringent as that of NYSHRL, and only requires that the offending conduct must be within the "broad range of conduct that falls between 'severe and pervasive' on the one hand and a 'petty or trivial inconvenience' on the other" regardless of whether such statements may have been isolated.
And, questions of severity or pervasiveness of the discriminatory conduct apply only to damages, not liability. Next, plaintiff has adequately pleaded her claim for a constructive discharge.
Plaintiff did leave the art gallery at one point when the comments were more than she could bear id. And, after Aboutaam forcibly kissed plaintiff in Paris she felt she could not speak up about the sexual comments id.
Finally, plaintiff proposes to amend the caption to reflect the proper name of her employer as Petrarch. Based on the alleged facts, no reasonable person could find that plaintiff was subjected to a hostile work environment, since there are no facts that harassment was severe or pervasive that it altered her working environment in any way, or that the conduct would be objectively or subjectively offensive to a reasonable person.
There is no evidence that defendants fostered a harassing office environment, and plaintiff, by her
Hicham aboutaam sexual harassment admissions, never complained of any harassment. Further, plaintiff fails to address the fact that shortly after the alleged harassment in Paris, plaintiff, who initially was hired as a contractor, accepted a full-time employment position with Petrarch.
She also does not allege that her working conditions were altered in any way and she never complained to anyone about any incidents of harassment. Plaintiff's allegations of harassment by a "Hicham aboutaam sexual harassment" who purportedly asked whether she would like to "hold his penis," present this comment out of context.
As stated in the Affidavit of the manager of Petrarch Alexander Gherardi, plaintiff chose to work in a gallery selling antiques, some of which had sexual connotations Gherardi Affidavit ; she worked in the gallery for two years and never indicated that selling or promoting such art offended her.
While holding the subject piece of art, he jokingly asked that question, referring to the phallic-shaped piece of art id. Considering the circumstances in which the alleged comment was made, it cannot be said that there was hostile or abusive environment created or directed at plaintiff. A trier of fact would find it to be a humorous situation. Likewise, a client asking plaintiff "sexual" questions, even if true, occurred on one occasion and plaintiff did not complain.
That Aboutaam "reprimanded" her on one occasion when she left work in the middle of the day without telling anyone after a customer purportedly offended her does not show an "abusive" environment. Plaintiff fails to allege constructive discharge because there is no allegation of any adverse action taken against plaintiff Hicham aboutaam sexual harassment an altered work environment due to harassment.
To the contrary, as the company was preparing for an important show, it relied on plaintiff's work. Plaintiff's allegations that "verbal abuse" from a coworker and client comments "condoned by her supervisor" ultimately forced her resignation, do not constitute altered environment or intolerable conditions that forced her to quit.
And in any event, that a customer made a joke about a phallic piece of art and people laughed, does not show that her supervisor "condoned" harassing behavior. Finally, plaintiff has failed to oppose the portion of defendants' motion seeking dismissal of her retaliation claim.
However, allegations consisting of bare legal conclusions, as well as factual claims inherently incredible or flatly contradicted by documentary evidence are not entitled to such consideration Biondi v Beekman Hill House Apt.
The court's Hicham aboutaam sexual harassment is limited to determining whether the complaint states any cause of action, not whether there is evidentiary support for it Rovello v Orofino Realty Co. Where the parties have submitted evidentiary material, including affidavits, the pertinent issue is whether claimant has a cause of action, not whether one has been Hicham aboutaam sexual harassment in the complaint see Guggenheimer v Ginzburg, 43 NY2d; R.
Affidavits submitted by a plaintiff may be considered for the limited purpose of remedying defects in the complaint Rovello v Orofino Realty Co. Sexual harassment that results in a "hostile or abusive work environment" is prohibited as a form of employment discrimination Meritor Savings Bank, FSB v Vinson, US 57, 66 . An actionable hostile work environment exists "when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment" Hernandez v Kaisman, AD3dNYS2d 53 [1st Dept ], quoting Harris v Forklift Systems, Inc.
These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance" Hernandez atquoting Harris v Forklift Systems at In addition, "the conduct must both have altered the conditions of the victim's employment by being subjectively perceived as abusive by the plaintiff, and have created an objectively hostile or abusive environment - one that a reasonable person would find to be so" Hernandez, citing Forrest v Jewish Guild for the Blind, 3 NY3d, NYS2d , citing Harris at Hicham aboutaam sexual harassment, the alleged one-time incident in Paris and the clients' "sexual" questions and comments, while offensive, were too isolated and occasional to rise to an actionable level Hicham aboutaam sexual harassment NYSHRL.
Furthermore, the alleged conduct of plaintiff's co-worker, telling plaintiff that she "hated" her and "could not work with her," cannot support a claim for a hostile environment based on sexual harassment, since there is no allegation that such hostility was based on plaintiff' sex or gender.