Mihalik v. Credit Agricole Cheuvreux North America, Inc. , 715 F.3d 102 ( 2013 )

11-3361-cv
Mihalik v. Credit Agricole Cheuvreux N. Am., Inc.
U NITED S TATES C OURT OF A PPEALS
FOR THE S ECOND C IRCUIT
August Term 2012
(Argued: September 28, 2012 Decided: April 26, 2013)
Docket No. 11-3361-cv
R ENEE M IHALIK ,
Plaintiff-Appellant,
v.
C REDIT A GRICOLE C HEUVREUX N ORTH A MERICA , I NCORPORATED ,
Defendant-Appellee.
Before:
C HIN , L OHIER , AND D RONEY , Circuit Judges.
Appeal from a judgment of the United States
District Court for the Southern District of New York
(Batts, J.), dismissing plaintiff-appellant's claims of
gender discrimination and retaliation under the New York
City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq.,
after the district court granted defendant-appellee's
motion for summary judgment. We conclude that, under the
broader standards of the City law, there are genuine
disputes of material fact that require a trial.
V ACATED AND R EMANDED .
B RIAN H ELLER , Schwartz & Perry, LLP, New
York, New York, for Plaintiff-
Appellant.
B ARBARA M. R OTH (Dori Ann Hanswirth, on the
brief), Hogan Lovells US LLP, New
York, New York, for Defendant-
Appellee.
C HIN , Circuit Judge:
In this case, plaintiff-appellant Renee Mihalik
sued her former employer, defendant-appellee Credit
Agricole Cheuvreux North America, Inc. ("Cheuvreux"),
alleging that her supervisor ran the office like a "boys'
club," subjecting her to sexually suggestive comments and
twice propositioning her for sex. She alleges that when
she refused his sexual advances, he retaliated by berating
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her in front of other employees and ultimately firing her.
Mihalik asserted claims of gender discrimination and
retaliation under the New York City Human Rights Law (the
"NYCHRL"), N.Y.C. Admin. Code § 8-107(1)(a), (7). The
district court granted summary judgment to Cheuvreux,
dismissing the complaint. We conclude the district court
erred in its application of the NYCHRL. Because Mihalik
presented sufficient evidence to show there are genuine
disputes of material fact regarding both her claims, we
vacate the district court's judgment and remand for trial.
STATEMENT OF THE CASE
A. The Facts
With all conflicts in the evidence resolved and
all reasonable inferences drawn in Mihalik's favor, the
facts may be summarized as follows:
1. Cheuvreux Hires Mihalik
In July 2007, Cheuvreux hired Mihalik as a Vice
President of Alternative Execution Services, working under
Chief Executive Officer Ian Peacock. This position
required Mihalik to sell Cheuvreux's electronic equity
trading services to institutional clients and cultivate
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them into regular customers. Cheuvreux hired Mihalik
because she had contacts with several potential clients.
Cheuvreux realized, however, that Mihalik was "coming from
a standing start" and that these relationships were not
"immediately transferable." Therefore, Cheuvreux did not
set "a hard target" for the revenue she had to generate.
2. Mihalik's Treatment
From the moment Mihalik started, Peacock paid
"special attention" to her, asking her about her
relationship status and whether she preferred older men or
was a "cougar." 1 Immediately, Peacock asked Mihalik to make
sure her travel arrangements for a business trip coincided
with his so they could "enjoy traveling together" and "get
to know each other." He commented on her appearance often,
telling her she looked "sexy" and that her red shoes meant
she was "promiscuous." When she wore certain outfits, he
told her that she should "dress like that every day. You
1
In this context, as the district court noted, the term
"cougar" refers to "'a middle-aged woman seeking a romantic
relationship with a younger man.'" Mihalik v. Credit Agricole
Cheuvreux N. Am., Inc., No. 09 Civ. 1251, 2011 WL 3586060, at *2
n.2 (S.D.N.Y. July 29, 2011) (quoting Merriam Webster's Online
Dictionary, http://www.merriam-webster.com/dictionary/cougar
(last visited July 27, 2011)).
- 4 -
might get more clients in turn." About two months after
she started, he asked her if she "fanc[ied] dogging" and
then, when she did not know what that was, described the
sex act to which he was referring. In response, Mihalik
would always tell Peacock that his behavior was
"inappropriate and unbefitting a CEO."
Peacock's boorish behavior was typical of the
"boys['] club" atmosphere in the Cheuvreux office. The
male employees regularly talked about visiting strip clubs
and rated their female colleagues' appearances. Shortly
after one of Mihalik's female co-workers had given birth,
Peacock joked that he could not see that co-worker because
her "breasts were in the way" and then told her, "[I]f this
job doesn't work out, Scores [a New York strip club] is
hiring." Upon introducing Mihalik to a new male employee
in January 2008, Peacock told her to "respect" the new
employee because he was "male" and "more powerful" than she
was. 2
2
Peacock's recollection of this incident differs
substantially, as he recalls that Mihalik raised the subject of
gender. According to his contemporaneous notes, Mihalik
instigated a fight with the new employee after telling him that
his marketing ideas were "crap." Peacock contends that Mihalik
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The male employees also frequently looked at
pornography on their computers and Peacock showed Mihalik
pornography "once or twice a month." 3 In one instance in
August 2007, Mihalik noticed Peacock laughing about
something on his computer screen and, when she asked him
what was so funny, he showed her an image of a man hanging
from his genitals. He then emailed this image to other
employees. Also that month, another Cheuvreux employee
emailed Mihalik a video parody of the television series
CSI, in which detectives used a black light to search for
semen residue on a woman's mouth. 4
In December 2007, Peacock propositioned Mihalik
twice, both times inviting her to spend the night with him
stated in this context, "[L]et's face it Ian, you hired me for
my looks and that's the only reason people do business.
. . . It is because I have breasts and look good."
3
Cheuvreux presented evidence that it blocks employees
from accessing pornographic websites on their work computers.
4
Cheuvreux alleges that this video originated with
Mihalik and that she sent it to both the Cheuvreux employee and
a client. The email Cheuvreux cites, however, clearly indicates
that Mihalik received the video from the Cheuvreux employee and
she forwarded it only to the client.
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at the "Cheuvreux flat." 5 Mihalik rejected the overtures,
telling Peacock "in no uncertain terms that [she] had no
interest in a personal relationship with him" and that his
conduct was "offensive and shameful." After these
rejections, Peacock stopped sitting next to Mihalik at the
trading desk -- where he had sat for the first several
months of her employment -- and began treating her
differently. Among other things, Peacock began to exclude
her from meetings, berate her in front of other employees,
and criticize the quality of her work.
3. Mihalik Complains
Mihalik first complained about this behavior
around the end of 2007. By then, however, the head of
human resources had resigned, leaving Peacock responsible
for most employment matters until a replacement was hired
in March 2008. Thus, beginning in November 2007, Mihalik
complained about Peacock's inappropriate sexual comments to
David Zack, the head compliance officer, instead of
reporting her concerns to human resources . Zack's only
5
Cheuvreux presented evidence that it does not maintain
an apartment or hotel room in New York City.
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response was, "[Y]ou can't prove it, he's the CEO, and
nobody is going to back you."
In April 2008, Mihalik presented Zack with a draft
email she intended to send to Peacock. In the draft email,
Mihalik planned to confront Peacock about criticizing her
in front of her co-workers, calling his behavior "very
unprofessional" and his criticisms "inaccurate," and asking
him to calmly discuss these matters with her in private.
After reviewing the email, Zack advised Mihalik that she
should send it only if she wanted to get fired.
4. Mihalik's Performance Problems
Mihalik's performance was deficient in certain
respects throughout her tenure. First, her monthly sales
commissions were substantially below those of her peers.
There were, however, mitigating circumstances. Only one of
Mihalik's clients was actively trading through the sales
desk during her tenure. While Mihalik had successfully
signed several institutional clients, those clients had to
finish negotiating their contracts with Cheuvreux before
they could generate revenue and these negotiations took
several months. Some of Mihalik's clients did not begin
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generating revenue for Cheuvreux until after her discharge.
In contrast, most of her colleagues had established books
of clients who regularly conducted business with Cheuvreux.
Second, Mihalik did not follow up on some sales
leads in a timely manner. For example, in August 2007, a
week after Peacock had provided Mihalik and a colleague
with three sales leads, Mihalik emailed the colleague to
ask if he knew "anything about these accounts Ian keeps
asking us about." At the end of November 2007, she s ent a
similar email to another colleague, asking about a sales
lead that Peacock had originally given her in mid -October.
And in January 2008, Mihalik apologized to an overseas
colleague for not following up with a client as she had
promised, explaining that she was delayed because her
airline had lost her luggage containing her business notes.
Finally, Mihalik missed approximately thirty-five
days of work during her nine months at Cheuvreux due to
vacations, sickness, and personal reasons. Mihalik
provided notice and obtained permission for all of her
absences, however, and never exceeded her allotted number
of vacation and sick days.
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5. Mihalik is Discharged
In April 2008, after she failed to complete an
assignment, Cheuvreux discharged Mihalik. Peacock had
instructed Mihalik to conduct cold calls for seven days
while he was away on business and to have twenty
conversations with prospective clients each day. When
Mihalik did not complete the assignment, Peacock scheduled
a meeting with her. Although initially he had intended
only to give her a performance warning, Peacock ultimately
fired Mihalik after she asked him, in an allusion to his
sexual propositions, "What's not working out[?] Me and you
or me at the company?"
B. Proceedings Below
After her discharge, Mihalik filed a complaint
against Cheuvreux in the Supreme Court of the State of New
York, New York County, alleging gender discrimination and
retaliation in violation of the NYCHRL, N.Y.C Admin. Code
§ 8-107(1)(a), (7). Mihalik did not assert claims under
federal or state law. Cheuvreux removed the case to the
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Southern District of New York on the basis of diversity of
citizenship of the parties. 6
After the close of discovery, Cheuvreux moved for
summary judgment. In a memorandum and order filed July 29,
2011, the district court granted Cheuvreux's motion,
relying on the traditional federal standards for
discrimination and retaliation, and noting that it was
"incorporat[ing] the special considerations" for NYCHRL
claims. Mihalik v. Credit Agricole Cheuvreux N. Am., Inc. ,
No. 09 Civ. 1251, 2011 WL 3586060, at *1, *5-6 (S.D.N.Y.
July 29, 2011) (citing Williams v. N.Y.C. Hous. Auth., 872
N.Y.S.2d 27 (1st Dep't 2009)).
The district court analyzed Mihalik's gender
discrimination claim using the federal quid pro quo and
hostile work environment theories. See id. at *6-8.
Considering her claim under the quid pro quo analysis, the
district court concluded that Mihalik failed to show any
connection between Peacock's sexual propositions and any
tangible job detriment, including her discharge. See id,
6
Mihalik is a citizen of New Jersey and Cheuvreux is a
Delaware corporation with its principal place of business in
either New York or California.
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at *6-7. The district court held that, alternatively,
Mihalik failed to show that the legitimate non-
discriminatory reason articulated by Cheuvreux for her
dismissal -- her poor job performance -- was pretextual.
See id. at *8.
Next, the district court performed a hostile work
environment analysis. See id. at *9-10. Although the
court took note that plaintiffs are not required to satisfy
the federal "severe and pervasive conduct" standard to
prevail on a claim brought under the NYCHRL, id. at *9; see
Williams, 872 N.Y.S.2d at 37-39, it relied heavily on the
First Department's admonition in Williams v. New York City
Housing Authority that the NYCHRL is not a "'general
civility code,'" Mihalik, 2011 WL 3586060, at *9 (quoting
Williams, 872 N.Y.S.2d at 40-41). Thus, it held that
Mihalik had merely presented evidence of "'sporadic
insensitive comments,'" rather than an actionable hostile
work environment. Id. at *9-10 (quoting Fullwood v. Ass'n
for the Help of Retarded Children, Inc., 08 Civ. 6739, 2010
WL 3910429, at *9 (S.D.N.Y. Sept. 28, 2010)).
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Finally, the district court considered Mihalik's
retaliation claims. While recognizing that, under the
NYCHRL, protected activities include "'oppos[ing] any
practice forbidden under this chapter,'" id. at *10
(alteration in original) (quoting N.Y.C. Admin. Code
§ 8-107(7)), the district court held that Mihalik failed to
show a causal connection between her discharge and either
her complaints of harassment or her rejection of Peacock's
propositions. Id. at *10-11. The court held that,
alternatively, she had not presented evidence that
Cheuvreux's non-discriminatory reasons for her termination
were pretextual. See id. at *11.
Final judgment dismissing all Mihalik's claims was
entered on July 29, 2011. This appeal followed.
DISCUSSION
A. Applicable Law
1. Standard of Review
We review de novo the district court's grant of
summary judgment, construing the evidence in the light most
favorable to the non-moving party and drawing all
reasonable inferences in her favor. McElwee v. Cnty. of
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Orange, 700 F.3d 635, 640 (2d Cir. 2012). Summary judgment
is appropriate only when "the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed. R. Civ. P.
56(a).
2. The NYCHRL
For many years, we construed the NYCHRL to be
coextensive with its federal and state counterparts. See,
e.g., Estate of Hamilton v. City of New York, 627 F.3d 50,
55 (2d Cir. 2010); Leibowitz v. Cornell Univ., 584 F.3d
487, 498 n.1 (2d Cir. 2009); Cruz v. Coach Stores, Inc.,
202 F.3d 560, 565 n.1 (2d Cir. 2000). In 2005, however,
the New York City Council amended the NYCHRL by passing the
Local Civil Rights Restoration Act of 2005 (the
"Restoration Act"), N.Y.C. Local L. No. 85. See, e.g.,
Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278
(2d Cir. 2009); Williams v. N.Y.C. Hous. Auth., 872
N.Y.S.2d 27, 36 (1st Dep't 2009) (Acosta, J.); see
generally Craig Gurian, A Return to Eyes on the Prize:
Litigating Under the Restored New York City Human Rights
Law, 33 F ORDHAM U RB . L.J. 255 (2006). As amended, the NYCHRL
- 14 -
requires an independent analysis. See Restoration Act § 1;
Loeffler, 582 F.3d at 278. Nonetheless, district courts
continued -- erroneously -- to apply federal standards to
NYCHRL claims. See, e.g., St. Jean v. United Parcel Serv.
Gen. Serv. Co., No. 12-544-cv, 2013 WL 336006, at *1 (2d
Cir. Jan. 30, 2013) (summary order) ("[T]he district court
erred to the extent it found that federal standards for
recovery are applied in determining employment
discrimination claims under the City HRL . . . ."); Simmons
v. Akin Gump Strauss Hauer & Feld, LLP , No. 11-4480-cv,
2013 WL 261537, at *2 (2d Cir. Jan. 24, 2013) (summary
order) ("[T]he district court erred to the extent that it
. . . analyzed [the NYCHRL claim] under the same standard
as her claims under federal and state law.").
In amending the NYCHRL, the City Council expressed
the view that the NYCHRL had been "construed too narrowly"
and therefore "underscore[d] that the provisions of New
York City's Human Rights Law are to be construed
independently from similar or identical provisions of New
York state or federal statutes." Restoration Act § 1. To
bring about this change in the law, the Act established two
- 15 -
new rules of construction. First, it created a "one-way
ratchet," by which interpretations of state and federal
civil rights statutes can serve only "'as a floor below
which the City's Human Rights law cannot fall .'" Loeffler,
582 F.3d at 278 (quoting Restoration Act § 1) . Second, it
amended the NYCHRL to require that its provisions "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 law s,
including those laws with provisions comparably-worded to
provisions of this title[,] have been so construed."
Restoration Act § 7 (amending N.Y.C. Admin. Code § 8-130).
Pursuant to these revisions, courts must analyze
NYCHRL claims separately and independently from any federal
and state law claims, see Restoration Act § 1; Hernandez v.
Kaisman, 957 N.Y.S.2d 53, 58 (1st Dep't 2012) ; Gurian,
supra, at 275-77, construing the NYCHRL's provisions
"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, 477-78 (2011).
Thus, even if the challenged conduct is not actionable
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under federal and state law, federal courts must consider
separately whether it is actionable under the broader New
York City standards. See Hernandez, 957 N.Y.S.2d at 58("While we find that the complained-of incidents do not
rise to the level of 'severe and pervasive' for purposes of
a claim pursuant to the State HRL, this does not dispose of
the question whether plaintiffs' City HRL claim is still
viable.").
a. Gender Discrimination
Section 8-107(1)(a) of the NYCHRL makes it "an
unlawful discriminatory practice . . . [f]or an employer or
an employee or agent thereof, because of the . . . gender
. . . of any person, to refuse to hire or employ or to bar
or to discharge from employment such person or to
discriminate against such person in compensation or in
terms, conditions or privileges of employment ." N.Y.C.
Admin. Code § 8-107(1)(a). Applying the Restoration Act's
new rules of construction, the First Department has
established a new standard of liability for gender
discrimination under the NYCHRL.
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Construing the phrase "discriminate against . . .
in terms, conditions or privileges of employment" broadly,
the First Department reasoned that forcing a targeted
employee to suffer "unwanted gender-based conduct" imposes
a different term or condition of employment on her, even if
the harassing conduct does not rise to the level of being
"severe and pervasive." Williams, 872 N.Y.S.2d at 38.
Therefore, the First Department declined to use the federal
"severe and pervasive" standard for NYCHRL claims and
instead adopted "a rule by which liability is normally
determined simply by the existence of differential
treatment." Id. To establish a gender discrimination
claim under the NYCHRL, the 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 39; accord Nelson v. HSBC Bank USA, 929
N.Y.S.2d 259, 264 (2d Dep't 2011) (adopting the same
standard of liability).
Under this standard, the conduct's severity and
pervasiveness are relevant only to the issue of damages.
See Williams, 872 N.Y.S.2d at 38. To prevail on liability,
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the plaintiff need only show differential treatment -- that
she is treated "less well" -- because of a discriminatory
intent. 7 See id. at 39. Indeed, the challenged conduct
need not even be "'tangible' (like hiring or firing)." Id.
at 40.
When applying this standard, however, district
courts must be mindful that the NYCHRL is not a "general
civility code." Id. at 40-41 (internal quotation marks and
citation omitted). The plaintiff still bears the burden of
showing that the conduct is caused by a discriminatory
motive. It is not enough that a plaintiff has an
overbearing or obnoxious boss. She must show that she has
been treated less well at least in part "because of her
gender." Id. at 39, 40 n.27 (emphasis added). 8
7
We note that our discussion applies only to disparate
treatment claims and that a separate provision of the NYCHRL
applies to disparate impact claims. See N.Y.C. Admin. Code
§ 8-107(17); Levin v. Yeshiva Univ., 96 N.Y.2d 484, 491 (2001);
cf. Ricci v. DeStefano, 557 U.S. 557, 577-78 (2009) (explaining
that, under Title VII, liability for disparate treatment
requires intentional discrimination, but liability for disparate
impact does not).
8
It is unclear whether, and to what extent, the
McDonnell Douglas burden-shifting analysis has been modified for
NYCHRL claims. Compare Bennett v. Health Mgmt. Sys., Inc., 936
N.Y.S.2d 112, 116 (1st Dep't 2011) (beginning to consider how
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Even if the plaintiff establishes that she was
treated "less well" because of her gender, defendants may
assert "an affirmative defense whereby [they] can still
avoid liability if they prove that the conduct complained
of consists of nothing more than what a reasonable victim
McDonnell Douglas framework should be modified), with Melman v.
Montefiore Med. Ctr., 946 N.Y.S.2d 27, 30 (1st Dep't 2012)
("[N]either the [Restoration Act] nor the City Council report
thereon . . . indicates that the McDonnell Douglas framework is
to be discarded."). Although Bennett seemed to suggest the
analysis has changed, the First Department later narrowly
construed Bennett as only requiring trial courts to consider
whether plaintiff's claim could survive under either the
McDonnell Douglas analysis or a mixed motives theory of
liability. See Melman, 946 N.Y.S.2d at 30. It is unclear how
this differs from the federal standard. See, e.g., Garcia v.
Hartford Police Dep't, 706 F.3d 120, 127 (2d Cir. 2013) ("[T]o
defeat summary judgment . . . the plaintiff is not required to
show that the employer's proffered reasons were false or played
no role in the employment decision, but only that they were not
the only reasons and that the prohibited factor was at least one
of the motivating factors." (internal quotation marks and
citation omitted)).
It is not necessary to resolve this issue. While it
is unclear whether McDonnell Douglas continues to apply to
NYCHRL claims and, if so, to what extent it applies, the
question is also less important because the NYCHRL simplified
the discrimination inquiry: the plaintiff need only show that
her employer treated her less well, at least in part for a
discriminatory reason. The employer may present evidence of its
legitimate, non-discriminatory motives to show the conduct was
not caused by discrimination, but it is entitled to summary
judgment on this basis only if the record establishes as a
matter of law that "discrimination play[ed] no role" in its
actions. Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d 27, 38,
40 n.27 (1st Dep't 2009); see also Furfero v. St. John's Univ.,
941 N.Y.S.2d 639, 642 (2d Dep't 2012) (citing Bennett, 936
N.Y.S.2d at 124).
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of discrimination would consider 'petty slights and trivial
inconveniences.'" Id. at 41 (quoting Oncale v. Sundowner
Offshore Servs., 523 U.S. 75, 81 (1998)). As with most
affirmative defenses, the employer has the burden of
proving the conduct's triviality under the NYCHRL. See
Drexel Burnham Lambert Grp. Inc. v. Galadari, 777 F.2d 877,
880 (2d Cir. 1985) (citing Blunt v. Barrett, 124 N.Y. 117,
119 (1891)) ("The party asserting an affirmative defense
usually has the burden of proving it."). The employer may
prevail on summary judgment if it shows that a reasonable
jury could conclude only that the conduct amounted to no
more than a petty slight. Williams, 872 N.Y.S.2d at 41.
Thus, courts may still dismiss "truly insubstantial cases,"
where the defense is clear as a matter of law. Id.In evaluating both the plaintiff's claim and the
defendant's affirmative defense, courts must consider the
"totality of the circumstances." Hernandez, 957 N.Y.S.2d
at 59. "[T]he overall context in which [the challenged
conduct occurs] cannot be ignored." Id. Even "a single
comment that objectifies women . . . made in circumstances
where that comment would, for example, signal views about
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the role of women in the workplace [may] be actionable."
Williams, 872 N.Y.S.2d at 41 n.30.
Although the First Department has observed that a
jury is often best suited to make this determination, id.
at 41, we note that summary judgment still can be an
appropriate mechanism for resolving NYCHRL claims. Even in
this context, summary judgment remains "an integral part of
the Federal Rules [of Civil Procedure] as a whole, which
are designed 'to secure the just, speedy and inexpensive
determination of every action.'" Celotex Corp. v. Catrett,
477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1). The
Restoration Act cannot, as a procedural matter, limit our
interpretation of Rule 56. See Com/Tech Commc'n Techs.,
Inc. v. Wireless Data Sys., Inc., 163 F.3d 149, 150-51 (2d
Cir. 1998) (per curiam) ("[W]here the matter in question is
one covered by the Federal Rules of Civil Procedure, 'it is
settled that . . . the Federal Rule applies regardless of
contrary state law.'" (omission in original) (quoting
Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427
n.7 (1996))). While the New York City Council may provide
a different substantive standard to be applied to
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particular claims in federal court, the same federal
procedural rules apply. See, e.g., id. at 150 ("Under the
Erie doctrine, federal courts sitting in diversity apply
state substantive law and federal procedural law. "
(internal quotation marks omitted)). Furthermore, even New
York courts continue to grant and affirm the granting of
summary judgment dismissing NYCHRL claims. See, e.g.,
Melman v. Montefiore Med. Ctr., 946 N.Y.S.2d 27, 44 (1st
Dep't 2012) ("[E]ven after the passage of the [Restoration
Act], not every plaintiff asserting a discrimination claim
will be entitled to reach a jury . . . ."); Bennett, 936
N.Y.S.2d at 123-25 (affirming grant of summary judgment);
Williams, 872 N.Y.S.2d at 42 (same). Accordingly, district
courts may still grant summary judgment with respect to
NYCHRL claims if there is no genuine dispute as to any
material fact regarding plaintiff's claim and the
employer's affirmative defense. See Fed. R. Civ. P. 56(a);
Celotex Corp., 477 U.S. at 324.
b. Retaliation
Section 8-107(7) of the NYCHRL prohibits employers
from "retaliat[ing] or discriminat[ing] in any manner
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against any person because such person has . . . opposed
any practice forbidden under this chapter." N.Y.C. Admin.
Code § 8-107(7). The Restoration Act amended this section
to further provide:
The retaliation or discrimination
complained of under this subdivision
need not result in an ultimate
action with respect to employment,
. . . or in a materially adverse
change in the terms and conditions
of employment, . . . provided,
however, that the retaliatory or
discriminatory act or acts
complained of must be reasonably
likely to deter a person from
engaging in protected activity.
Restoration Act § 3 (amending N.Y.C. Admi n. Code
§ 8-107(7)). Thus, to prevail on a retaliation claim under
the NYCHRL, the plaintiff must show that she took an action
opposing her employer's discrimination , see Albunio, 16
N.Y.3d at 479, and that, as a result, the employer engaged
in conduct that was reasonably likely to deter a person
from engaging in such action, see Williams, 872 N.Y.S.2d at
33-34.
In accordance with the Restoration Act's rules of
construction, New York courts have broadly interpreted the
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NYCHRL's retaliation provisions. See, e.g., Albunio, 16
N.Y.3d at 477-78. The New York Court of Appeals has held
that "oppos[ing] any practice" can include situations where
a person, before the retaliatory conduct occurred, merely
"made clear her disapproval of [the defendant's]
discrimination by communicating to [him], in substance,
that she thought [his] treatment of [the victim] was
wrong." Id. at 479.
Similarly, the First Department has held that "no
challenged conduct may be deemed nonretaliatory" unless "a
jury could not reasonably conclude from the evidence that
such conduct was . . . 'reasonably likely to deter a person
from engaging in protected activity.'" Williams, 872
N.Y.S.2d at 34. This "assessment [should] be made with a
keen sense of workplace realities, of the fact that the
'chilling effect' of particular conduct is context -
dependent, and of the fact that a jury is generally best
suited to evaluate the impact of retaliatory conduct." Id.
3. Analysis of NYCHRL Claims
To summarize, federal courts reviewing NYCHRL
claims are to be guided by the following considerations:
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(1) NYCHRL claims must be analyzed separately and
independently from federal and state
discrimination claims, see Restoration Act
§ 1; Hernandez, 957 N.Y.S.2d at 58;
(2) the totality of the circumstances must be
considered because "the overall context in
which [the challenged conduct occurs] cannot
be ignored," Hernandez, 957 N.Y.S.2d at 59;
(3) the federal severe or pervasive standard of
liability no longer applies to NYCHRL claims,
and the severity or pervasiveness of conduct
is relevant only to the scope of damages, see
Williams, 872 N.Y.S.2d at 38;
(4) the NYCHRL is not a general civility code,
see Williams, 872 N.Y.S.2d at 40, and a
defendant is not liable if the plaintiff
fails to prove the conduct is caused at least
in part by discriminatory or retaliatory
motives, see id. at 39-40 & n.27, or if the
defendant proves the conduct was nothing more
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than "petty slights or trivial
inconveniences," id. at 41;
(5) while courts may still dismiss "truly
insubstantial cases," even a single comment
may be actionable in the proper context, id.at 41 & n.30; and
(6) summary judgment is still appropriate in
NYCHRL cases, but only if the record
establishes as a matter of law that a
reasonable jury could not find the employer
liable under any theory, see Melman, 946
N.Y.S.2d at 30; Furfero v. St. John's Univ.,
941 N.Y.S.2d 639, 642 (2d Dep't 2012).
B. Application
We consider in turn Mihalik's claims of gender
discrimination and retaliation.
1. Gender Discrimination
Applying the standards set out above, we conclude
that the district court erred in granting summary judgment
dismissing Mihalik's gender discrimination claim because
there is a genuine dispute as to whether she was treated
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less well than her male colleagues because of her gender.
Mihalik presented evidence that men in the Cheuvreux office
"objectified" women by openly viewing and sharing
pornography, discussing their jaunts to strip clubs, rating
the female employees' appearances, and making lascivious
comments about women's outfits and bodies. See Hernandez,
957 N.Y.S.2d at 59 ("[C]omments and emails objectifying
women's bodies and exposing them to sexual ridicule, even
if considered 'isolated,' clearly signaled that defendant
considered it appropriate to foster an office environment
that degraded women."). There was even evidence that
Peacock explicitly told Mihalik that male employees should
be respected because they were "male" and thus "more
powerful" than women. See Williams, 872 N.Y.S.2d at 41
n.30 ("[A] single comment that objectifies women . . .
made in circumstances where that comment would, for
example, signal views about the role of women in the
workplace [may] be actionable.").
Mihalik was subjected to this environment, and
also had to suffer Peacock's unwanted sexual attention,
including two sexual propositions. If a jury were to
- 28 -
credit Mihalik's testimony, it could reasonably 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. Id. at 39, 41; see also
Hernandez, 957 N.Y.S.2d at 57 ("'The mere fact that men and
women are both exposed to the same offensive circumstances
on the job site . . . does not mean that, as a matter of
law, their work conditions are equally harsh.'" (quoting
Petrosino v. Bell Atl., 385 F.3d 210, 221 (2d Cir. 2004))).
The district court reached a different conclusion
by relying on reasons that find no support in the NYCHRL,
as interpreted by New York courts. First, the district
court analyzed Mihalik's gender discrimination claim under
two federal standards of liability: the quid pro quo
analysis -- looking for a connection between the
discriminatory conduct and a materially adverse employment
action -- and a hostile work environment analysis --
looking for conduct severe or pervasive enough to alter the
terms of Mihalik's employment. Mihalik, 2011 WL 3586060,
at *6-10. Williams made clear, however, that the NYCHRL
does not require either materially adverse employment
- 29 -
actions or severe and pervasive conduct. See Williams, 872
N.Y.S.2d at 34, 37-39. Instead, "a focus on unequal
treatment based on gender -- regardless of whether the
conduct is 'tangible' (like hiring or firing) or not -- is
in fact the approach that is most faithful to the uniqu ely
broad and remedial purposes of the local statute." Id. at
40. Thus, Peacock's alleged mistreatment of Mihalik would
be actionable under the NYCHRL even if it was unrelated to
her discharge 9 and was neither severe nor pervasive. Id. at
39.
Second, the district court concluded that Mihalik
had not shown that Cheuvreux's proffered reason for her
dismissal -- her poor performance -- was a pretext for
discrimination. Under the NYCHRL, however, differential
treatment may be actionable even if it does not result in
an employee's discharge. See id. at 40. Even a poorly-
performing employee is entitled to an environment free from
sexual harassment. See id. at 38 ("[A]nalysis of the City
HRL must be guided by the need to make sure that
9
For reasons discussed more fully in the next section,
there is also a genuine dispute as to Cheuvreux's motivation for
Mihalik's discharge.
- 30 -
discrimination plays no role [in the workplace] . . . .").
Therefore, Mihalik's alleged poor performance would not
excuse Peacock's alleged sexual advances and demeaning
behavior. In other words, even assuming that Mihalik could
not prove she was dismissed for a discriminatory reason or
that Cheuvreux had good grounds for discharging her,
Mihalik could still recover for any other differential
treatment based on her gender. 10
Finally, the district court concluded that
Mihalik's testimony showed no more than "'sporadic
insensitive comments'" and it granted summary judgment
because the NYCHRL was not a "general civility code."
Mihalik, 2011 WL 3586060, at *9-10 (quoting Fullwood, 2010
WL 3910429, at *9). This analysis places too much emphasis
on Williams's recognition that the NYCHRL should not
"operate as a 'general civility code,'" and too little
emphasis on its exhortation that even "a single comment"
may be actionable in appropriate circumstances. See
Williams, 872 N.Y.S.2d at 40-41 & n.30 (quoting Oncale, 523
10
Of course, whether Mihalik's discharge resulted from
discriminatory treatment against her would be relevant to the
quantum of damages.
- 31 -
U.S. at 81). Under New York law, a defendant is entitled
to summary judgment based on the conduct's triviality only
if a reasonable jury could not interpret the alleged
comments as anything "more than petty slights or trivial
inconveniences." Id. at 41. Construing the evidence in
its totality and in Mihalik's favor, we conclude that a
jury could reasonably find that Peacock's behavior
constituted more than "petty slights or trivial
inconveniences," and that it was sexually-charged conduct
that subjected Mihalik to a different set of employment
conditions than her male colleagues. 11 Accordingly, the
grant of summary judgment dismissing Mihalik's gender
discrimination claim was inappropriate.
11
While there is evidence that Mihalik engaged in
similar boorish behavior, such as sending an email to a male
employee that read "hey . . . Stud" or telling another that he
"looked so ripped," it is the province of the jury to weigh this
competing evidence and decide whether it indicates that Mihalik
worked under the same terms and conditions of employment as her
male co-workers or that the challenged conduct was too trivial
to be a basis for liability. Viewing Mihalik's comments in
context, a jury may conclude that they were made in jest, were
less offensive than those allegedly made by the male employees,
or were her attempt to cope with her hostile work environment.
Therefore, we cannot conclude that this evidence shows Cheuvreux
is entitled to judgment as a matter of law.
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2. Retaliation
Applying the New York courts' interpretation of
the NYCHRL's retaliation provision, we conclude there is a
genuine dispute as to whether Peacock retaliated against
Mihalik for opposing his discriminatory conduct. First,
there is an issue of fact regarding what occurred in the
April 2008 meeting at which Mihalik was fired. It is
undisputed that Peacock had no intention of firing Mihalik
before that meeting, but the parties do dispute what
happened during the meeting. Mihalik testified that
Peacock fired her only after she asked, "What's not working
out[?] Me and you or me at the company?" Under the
NYCHRL, by implicitly referencing her rejection of his
sexual propositions, she may have opposed his
discrimination by "communicating to [Peacock], in
substance, that she thought [Peacock's] treatment of [her]
was wrong." Albunio, 16 N.Y.3d at 479. If the jury
credits this testimony and finds that Peacock fired Mihalik
because she denounced his sexual propositions in the April
2008 meeting, Peacock would be liable for retaliation under
the NYCHRL. Thus, the district court erred in concluding
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that "disputes about details of this meeting are not
relevant." Mihalik, 2011 WL 3586060, at *3 n.4.
Second, putting aside what happened at the April
2008 meeting, there is a genuine dispute as to whether
Peacock retaliated against Mihalik in other ways. A jury
could reasonably find that Mihalik had also opposed
Peacock's discriminatory conduct by rejecting his advances
in December 2007 and telling him that his actions were
"offensive and shameful." Cf. Albunio, 16 N.Y.3d at 479(affirming jury's finding that an employee "'opposed'
discrimination" by telling her supervisor, after he
criticized her for recommending a homosexual candidate for
a job, that she would do it again and making clear her
disapproval of her supervisor's discriminatory action). 12
Mihalik testified in her deposition that, after she
12
We offer no opinion on whether merely rejecting a sexual
advance is cognizable under the federal or state counterparts to
the NYCHRL. Compare LeMaire v. Louisiana Dep't of Transp. &
Dev., 480 F.3d 383, 389-90 (5th Cir. 2007) ("rejecting sexual
advances" in and of itself is not a protected activity under
Title VII), with Ogden v. Wax Works, 214 F.3d 999, 1007 (8th
Cir. 2000) (rejecting advance and telling supervisor to stop his
offensive conduct constituted "the most basic form of protected
conduct"). As we caution above, the NYCHRL calls for an
independent analysis that is consistent with its "uniquely broad
and remedial purposes." Restoration Act § 7.
- 34 -
rejected Peacock's propositions in this manner, he began to
tell her -- in front of her mostly male colleagues -- that
she "add[ed] nothing of value," that she has "no fucking
clue what [she was] doing," and that she was "pretty much
useless." Mihalik also alleges that Peacock stopped
sitting next to her at the trading desk and instructed the
staff to exclude her from meetings.
The jury could find that Peacock's actions were
the result of Mihalik's opposition in December 2007. While
Cheuvreux presented evidence of flaws in Mihalik's
performance throughout her employment, the company
presented no evidence that anyone confronted her about
these problems before she rejected Peacock's alleged
advances in December 2007. Indeed, Mihalik alleges that
the meeting in April 2008 was the first time Peacock met
with her to review her performance. Again, Peacock had no
intention of firing Mihalik before the meeting. Drawing
all reasonable inferences in Mihalik's favor, we cannot
conclude as a matter of law that there was no causal
connection between the rejections and Peacock's subsequent
- 35 -
demeaning conduct. 13 Moreover, keeping in mind "workplace
realities" and "the fact that the 'chilling effect' of
particular conduct is context-dependent," a jury could
reasonably find that publicly humiliating Mihalik in front
of her male counterparts and otherwise shunning her was
likely to deter a reasonable person from opposing his
harassing behavior in the future. See Williams, 872
N.Y.S.2d at 34; see also Albunio, 16 N.Y.3d at 476, 478(finding no merit in defendant's argument that certain
employment actions, including being "shunned and excluded
from meetings," were not adverse as a matter of law);
Gurian, supra, at 322 (asserting that if "the cost of
opposing discrimination would be the loss of all future
social intercourse with other employees, the workplace
reality would be that some people -- indeed, many people --
would become less likely to oppose discrimination than they
otherwise would be").
13
For similar reasons, a jury could also find that Peacock's
behavior and Mihalik's discharge were additional instances in
which she was treated less well because of her gender. Instead
of viewing Mihalik's rejections as opposing discrimination, a
jury may view them as failing to submit to Cheuvreux's
discriminatory term or condition of employment -- i.e.,
accepting the CEO's sexual advances -- which Peacock sought to
enforce by humiliating and firing her.
- 36 -
The district court also granted summary judgment
on the alternative ground that Mihalik had not shown that
Cheuvreux's non-discriminatory justification for Mihalik's
discharge was pretextual. We conclude this was error. As
an initial matter, summary judgment is appropriate only if
the plaintiff cannot show that retaliation played any part
in the employer's decision. See Melman, 946 N.Y.S.2d at
30-31; Furfero, 941 N.Y.S.2d at 642. At the least, the
dispute surrounding the April 2008 meeting raises a
question of fact as to whether Cheuvreux had mixed motives
for firing Mihalik. Because the undisputed evidence
demonstrates that her performance did not motivate Peacock
to fire her before the April 2008 meeting, a jury could
credit Mihalik's version of that meeting and find that
retaliation was a motivating factor for her discharge.
In addition, we conclude that Mihalik has
presented sufficient evidence from which a jury could
conclude Cheuvreux's non-discriminatory rationale was
pretextual. In response to Cheuvreux's evidence of her low
sales commissions and failure to follow up on some sales
leads, Mihalik presented evidence that: Cheuvreux hired
- 37 -
her because she had pre-existing contacts with prospective
clients; Mihalik in fact signed many of those clients;
Cheuvreux set no hard sales targets for Mihalik because she
was beginning from a "standing start"; Cheuvreux knew it
could take many months for a new client to start generating
revenue; and some of the clients Mihalik signed began
producing revenue for Cheuvreux only after her dismissal.
Mihalik also presented evidence showing that she did not
exceed her allotted number of vacation and sick days, and
that Peacock had approved each of her vacation requests.
From this evidence, a jury could find that Mihalik's true
value rested on her ability to recruit large institutional
clients and Cheuvreux knew that several of them would begin
to generate income shortly.
More importantly, while we agree that the evidence
of Mihalik's poor performance was substantial, we also
conclude that a jury could find, notwithstanding that poor
performance, that Cheuvreux was not yet ready to fire
Mihalik and that it did so only after Peacock became angry
that Mihalik raised the issue of his sexual advances.
Moreover, because Peacock had never criticized Mihalik's
- 38 -
performance before she rejected his propositions, a jury
could find that he used her shortcomings as an excuse to
humiliate and punish her for opposing his discriminatory
behavior. If a jury so found, it would be free to infer
that Cheuvreux is using Mihalik's poor performance now as a
mere cover-up for retaliation. See Bennett, 936 N.Y.S.2d
at 124. Therefore, the district court erred in granting
summary judgment on Mihalik's retaliation claim.
CONCLUSION
We conclude that the district court erred in
granting summary judgment because the record below
presented genuine disputes of material fact regarding both
Mihalik's claims under the NYCHRL. Accordingly, the
judgment is VACATED and the case is REMANDED for trial.
- 39 -