By Marjorie Johnson, J.D.
The employee was fired shortly after telling an HR manager about the abuse, and though they had each obtained a protective order against the other (she claimed his was retaliatory), he remained employed.
A female employee who was fired days after alerting HR about her prior romantic relationship with a supervisor who had physically abused her, and complaining that he was making it difficult for her to come to work, plausibly alleged claims of disability and gender bias and retaliation. Denying in part the employer’s motion to dismiss, the court found it “highly doubtful” that her injuries due to his alleged beatings constituted a disability within the meaning of the ADA, but declined to prematurely decide such a fact-specific inquiry. Moreover, her contention that she was fired while he was not suggested she was discriminated against because she is a woman. She also plausibly alleged a hostile work environment claim since the HR manager purportedly did nothing to stop the supervisor’s known harassment and abuse (Lewis v. Turning Point Brooklyn, Inc., March 29, 2019, Block, F.).
Abusive relationship. Shortly after the employee was hired as an administrative assistant in April 2016, she became romantically involved with the maintenance supervisor. He soon started to verbally and physically abuse her, including grabbing her during lunch, telling her she could not wear certain clothing, and forbidding her from speaking to male coworkers and clients. At a company beach outing he became angry when she sat by a coworker and later grabbed her and slammed her against a wall. She ended the relationship in August.
Altercation in office basement. He eventually wooed her back, they moved in together, and she learned in December that she was pregnant. On January 3, he told her that she had until the end of the day to move out since he and his ex-wife were reconciling. When she said that was not possible, he slammed her against the wall of the office basement. She ran upstairs crying and was allowed to go home for the rest of the day. But when he got home he continued to physically abuse her.
HR alerted. She filed a report with the police the next day and he was served with a notice of protection on January 5. On Friday, January 6, she told the HR manager about her abusive past with the supervisor and said that he was making it difficult for her to come to work. The HR manager told her she could file an official complaint, and she said she would wait to see if the situation escalated. That same day, the supervisor served a retaliatory order of protection on her.
Terminated. The following Monday, January 9, the HR manager told her that the company knew about the supervisor’s order of protection against her. The next day she was terminated. A week later, a former coworker told her that she had heard the maintenance director (her abuser’s boss) say that the two had an argument in the basement and that he would make sure that the employee, but not the supervisor, was fired. Meanwhile, the supervisor was arrested for threatening to kill her and their baby, yet he remained employed by the company.
The employee filed this action asserting claims of disability and gender discrimination and retaliation under Title VII, the ADA, the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL).
Disability discrimination. Though the court found it “highly doubtful” that she was disabled within the meaning of the ADA given the very short duration of her absences from work, it declined to decide such a fact-specific inquiry at the motion to dismiss phase. If she could establish that her injuries were “exceedingly severe,” it was “theoretically possible” that their temporary nature did not prevent them from being substantially limiting. Further, she would not need to make that showing if she demonstrated that she was regarded as disabled. As to causation, she asserted that at least some decisionmakers were aware of her injuries and the male supervisor’s abuse, and that she missed work after his attacks. That information—coupled with the temporal proximity of her firing—was enough for these claims to advance at this early stage.
Gender bias. The employee’s contention that she was fired while the male supervisor was not suggested that she was discriminated against because she was a woman. Indeed, she claimed that while the employer retained the male abuser, it terminated the female target of that abuse. And while she didn’t allege that anyone other than the supervisor knew that she was pregnant, his knowledge could give rise to the inference that others knew, which was enough at this stage to support a claim for pregnancy discrimination. She also plausibly alleged a hostile work environment claim since she alleged that HR did nothing to stop the supervisor’s known harassment and abuse.
Retaliation. The employee also sufficiently alleged unlawful retaliation based on her complaints about sex discrimination since she asserted that she engaged in protected activity when she informed the HR manager about the supervisor’s abuse and harassment, and was fired just four days later. However, she failed to plausibly allege that she was retaliated against for engaging in protected activity under the ADA since she didn’t assert that she complained about disability discrimination or engaged in other protected activity under the Act.
Claims against individual defendants. Finally, the court denied the four individual defendants’ bid to dismiss her NYSHRL and NYCHRL claims against them. The statutes allowed actions against supervisors and coworkers who “aided or abetted” discriminatory acts, which included participating in the conduct giving rise to a discrimination claim. Here, the employee alleged they did just that. She asserted that the male supervisor abused and harassed her, giving rise to a hostile work environment, and also alleged facts from which it could be reasonably inferred that he was involved in her termination. She also claimed that her own supervisor and the HR manager informed her that she was being terminated and that the maintenance director had stated to a coworker that he would make sure that she was fired while her
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