From the decision:

To state a Title VII hostile work environment claim, a plaintiff must plausibly allege: (1) unwelcome conduct (2) based on a protected characteristic (3) that was severe or pervasive enough to make her work environment hostile or abusive, (4) that was imputable to her employer, and (5) the protected characteristic was the “but for” cause of the alleged harassment. Laurent-Workman v. Wormuth, 54 F.4th 201, 210 (4th Cir. 2022).

Plaintiff alleges that the combination of several incidents occurring after August 2022 created a hostile work environment. (ECF No. 1 ¶ 119.) First, she argues that supervisors “amplified trivial incidents against Plaintiff while ignoring her complaints.” (Id. ¶ 122.) But she does not point to any allegations which suggest that this treatment was based on a protected characteristic. Second, Plaintiff notes that she was barred from entering AADF while under investigation whereas comparators such as Officer Bailey were allowed to work in the building while facing termination. (Id. 123.) But Plaintiff never states the race or sex of Officer Bailey in the Complaint. Thus, even if the Court assumes that this allegation is relevant to a hostile work environment claim insofar as it constitutes allegedly unwelcome conduct, the Court has no basis to conclude that it was based on a protected characteristic.

That leaves one final incident: the “severe racial and gender-based slur” that an inmate allegedly directed at Plaintiff in October 2022. (Id. ¶¶ 32, 121.) The Fourth Circuit has made clear that even a single utterance of a racial slur—and in particular, the odious racial slur that was allegedly uttered here—is “severe enough to engender a hostile work environment.” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 280 (4th Cir. 2015) (en banc). As the Fourth Circuit observed, “perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as” the precise one allegedly said here. Id. To be sure, there are differences between this case and Boyer-Liberto. In Boyer-Liberto, a supervisor directed the racial slur at the plaintiff, who was a cocktail waitress at a hotel. Id. at 269–70. Meanwhile, here, it was an inmate, not a supervisor, who directed the slur at Plaintiff. (ECF No. 1 ¶ 32.) As two Courts of Appeals have noted, “[b]y choosing to work in a prison, corrections personnel have acknowledged and accepted the probability that they will face inappropriate and socially deviant behavior.” Vajdl v. Mesabi Acad. of KidsPeace, Inc., 484 F.3d 546, 550 (8th Cir. 2007) (quoting Slayton v. Ohio Dep’t of Youth Servs., 206 F.3d 669, 677 (6th Cir. 2000)). But the core teaching of Boyer-Liberto is that some words are, by their nature, so offensive that their utterance just one time is beyond the bounds of what is acceptable in the workplace. See Boyer-Liberto, 786 F.3d at 280. Depending on the conduct of the employer, this can be true even when one’s workplace is a prison. Here, based on the overall context as alleged, Plaintiff has sufficiently alleged a hostile work environment.

Although uttered by an inmate, the slur is attributable to the County because Sgt. Blackburn, a supervisor, “told Plaintiff to ‘let it go’ in front of the inmates.” (ECF No. 1 ¶¶ 28, 32); see Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998) (holding that, under Title VII, employers can be vicariously liable for the actions of supervisors). In this way, if the allegation is true as the Court must assume at this stage, Sgt. Blackburn arguably “fail[ed] to take immediate and appropriate corrective action in response to a hostile work environment” of which he was aware. Beckford v. Dep’t of Corr., 605 F.3d 951, 957–58 (11th Cir. 2010) (citation omitted). On these “facts,” the County’s alleged failure to remedy the abusive treatment of Plaintiff was plausibly negligent, which would make it liable under Title VII for creating a hostile work environment. See, e.g., id. at 958 (holding that prisons can be liable for a hostile work environment created by inmate behavior when the prison negligently fails to take corrective action to stop the abusive behavior); Erickson v. Wis. Dep’t of Corr., 469 F.3d 600, 605 (7th Cir. 2006) (same); Slayton v. Ohio Dep’t of Youth Servs., 206 F.3d 669, 677 (6th Cir. 2000) (same).

Based on this, the court held that the County’s motion to dismiss plaintiff’s Title VII hostile work environment claim will be denied.

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From the decision:

The court properly dismissed the claims based on alleged conduct and events that occurred prior to September 13, 2020, as barred by the statute of limitations and because the continuing violation doctrine does not apply (see Campbell v New York City Dept. of Educ., 200 AD3d 488, 489 [1st Dept 2021] ). Plaintiff’s allegations relating to three events that allegedly transpired in 2012, 2014, and 2018, are outside of the three-year statute of limitations for her City and State HRL claims, and do not form “a single continuing pattern of unlawful conduct,” but rather constitute “discrete events, involving different actors” occurring years apart (id. [internal quotation and citation omitted] ).

However, plaintiff’s remaining allegations of employment discrimination that occurred after September 13, 2020, should not have been dismissed at this early stage of the litigation. Under the “lenient notice-pleading standard afforded to discrimination claims” (Eustache v Board of Educ. of the City Sch. Dist. of the City of N.Y., 228 AD3d 482, 483 [1st Dept 2024] ), the complaint contains sufficient allegations to support a claim for age and gender discrimination under the State and City Human Rights Laws (see generally Harrington v. City of New York, 157 AD3d 582, 584 [1st Dept 2018] ).

In addition to being protected from gender-based discrimination, an employee is protected from discrimination based on marital status under both the City and State HRLs (Administrative Code of City of N.Y. § 8–107[1][a]; Executive Law § 296[a]; see also Matter of McCabe v. 511 W. 232nd Owners Corp., 43 NY3d 365, 372 [2024] ). Here, plaintiff alleges that she was treated less well than her married male counterparts due to defendants denying her equal terms and conditions of employment, including by withholding raises, opportunities to earn commissions, and opportunities to purchase equity points. Plaintiff also alleges that defendant Mitchell Banchik, the president of defendant MNM2 Management, Inc., considered an employee’s “lifestyle,” including whether they were married or had children, when making employment decisions.

Plaintiff sufficiently alleges that she suffered an adverse employment action – namely, that she was terminated. Plaintiff alleges that defendants implemented a policy that incentivized younger partners to buy more equity points and take over operations from senior partners. The temporal proximity of plaintiff’s termination to defendants’ implementation of that policy gives rise to an inference of discrimination. Though plaintiff need not allege pretext for employment discrimination at the motion to dismiss stage, the complaint alleges that defendants explained that plaintiff was terminated because her role was being outsourced to third parties, yet her position was subsequently filled by a male employee in a full-time capacity, further raising an inference of discrimination.

Accordingly, dismissal was not warranted.

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To succeed on her hostile work environment claim, Watkins is required to establish that:

(1) she was subjected to a hostile work environment, and (2) Wesley Homes is liable for the harassment that caused the hostile environment to exist. Fried v. Wynn Las Vegas, 18 F.4th 643, 647 (9th Cir. 2021). To meet the first element, she must show: (1) she was subjected to verbal or physical conduct of a sexual or racial nature; (2) the conduct was unwelcome; and (3) “the conduct was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.” Id. (citing Little v. Windermere Relocation, Inc., 301 F.3d 958, 966 (9th Cir. 2002)); see also Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (“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, Title VII is violated.” (citation modified)). “To determine whether conduct was sufficiently severe or pervasive,” courts examine “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 interferes with an employee’s work performance.” Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003) (citation modified). “[O]ffhand comments[ ] and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment[.]” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).

As with her original complaint, Watkins’s amended complaint fails to allege conduct sufficiently severe or pervasive to alter the conditions of her employment. Much of the amended complaint “offers ‘labels and conclusions’ [and] ‘a formulaic recitation of the elements of a cause of action [that] will not do.’ ” Iqbal, 556 at 678 (quoting Twombly, 550 U.S. at 555). Watkins alleges that she was “directed by email” to report to her supervisor’s office “regarding the funeral,” had a request for the Executive Director’s attendance at the meeting (as permitted by the employee handbook) denied, and was threatened to be labeled as insubordinate or with termination if she “did not meet alone and agree to be ‘trained’ and sign a write-up.” Dkt. No. 33 at 2. She alleges that there was “[a] witness…present…during part of the meeting.” Id.

These allegations are not frequent or severe enough to constitute a hostile work environment. Taken together, Watkins’s allegations identify one meeting in which her supervisor said she needed training and that failure to comply would result in termination. Id. at 2–3. Watkins suggests that this meeting failed to comply with Wesley Home’s “progressive discipline” policy, but that appears inconsistent with the fact that she was specifically not terminated at this meeting. Id. at 2. And in any event, “the mere threat of termination does not constitute an adverse employment action.” Hellman v. Weisberg, 360 F. App’x 776, 779 (9th Cir. 2009). Moreover, considering “all the circumstances,” Vasquez, 349 F.3d at 642, including that there was “[a] witness…present…during part of the meeting,” Dkt. No. 33 at 2, it does not appear that the Executive Director’s absence from the meeting elevated the circumstances to the level of a hostile work environment.

Watkins’s allegations do not constitute “physically threatening or humiliating” conduct, nor do they demonstrate an “unreasonabl[e] interfere[nce] with…work performance.” Vasquez, 349 F.3d at 642. At most, her allegations appear to demonstrate “isolated incidents” that do not amount to “discriminatory changes in the terms and conditions of employment[.]” Faragher, 524 U.S. at 788. Therefore, the Court dismisses Watkins’s hostile work environment claim.

Based on this, the court held that dismissal was warranted.

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Initially, the court denied plaintiff’s motion to reargue the court’s June 23, 2025 decision and order granting defendants’ motion to dismiss plaintiff’s original complaint, which “completely failed to allege any protected class that the plaintiff might belong to, a threshold requirement for discrimination and hostile work environment claims.” While plaintiff’s counsel subsequently argued in a memorandum of law that plaintiff is a “gay man,” the court held that it “appropriately declined to consider this new factual assertion since it was not pleaded in the complaint or supported by an affidavit from the plaintiff.”

Turning to the plaintiff’s motion to amend, the court explained:

Substantively, the proposed amended complaint(“PAC’) sufficiently cures the pleading defects that led to the original dismissal. The PAC now explicitly pleads that the plaintiff is a Caucasian gay male and that his sexual orientation was known to the defendants (NYSCEF Doc. No. 29, PAC ¶ 11). It alleges a clear discriminatory nexus by asserting that CEO Jim Shreve, who is also a gay man, directed a pattern of unsolicited, sexually explicit communications and images specifically toward the plaintiff and other male subordinates (NYSCEF Doc. No. 29, PAC ¶¶ 14, 25-30, 37-38). While the defendants previously relied upon text messages showing the plaintiff’s participation in sexual banter to argue that the conduct was not unwelcome, the PAC addresses this by providing context regarding workplace power dynamics. The PAC alleges that Shreve treated the plaintiff more like a personal acquaintance due to a prior connection with Shreve’s spouse, creating a dynamic where the plaintiff felt pressured to maintain a cordial rapport to preserve his professional standing, and that the plaintiff responded to Shreve with minimal engagement out of fear of retaliation, rather than true consent (NYSCEF Doc. No. 29, PAC ¶¶ 33-39, 48-56).

The PAC also clarifies that the plaintiff engaged in protected activity by making formal workplace complaints to Director of Human Resources Marsha Salmon and Chief Financial Officer Miriam Vales regarding Shreve’s sexually harassing behavior and racially discriminatory directives, such as a command to focus on “more white sponsorships.” (NYSCEF Doc. No. 29, PAC ¶¶ 70, 76, 84, 87-90, 94-96). The PAC adequately establishes a causal nexus by pleading temporal proximity. The plaintiff alleges that he made these complaints in the summer and August of 2022, and was abruptly terminated shortly thereafter on November 3, 2022, under the pretext of an unfounded complaint from an underperforming subordinate (NYSCEF Doc. No. 29, PAC ¶¶ 102-105). To cure the jurisdictional and liability defects regarding individual defendants Salmon and Vales, the PAC alleges that both executives held direct authority over Baccarat’s U.S. operations, including the New York office (NYSCEF Doc. No. 29, PAC ¶¶ 74, 76). The PAC asserts that they had a specific duty to investigate and remedy unlawful workplace conduct but deliberately chose to ignore the plaintiff’s repeated complaints. Under the liberal pleading standards, an out of-state supervisor’s deliberate failure to take adequate remedial measures despite being informed of discriminatory conduct in New York is sufficient to state a claim for actual participation and aiding and abetting discrimination, which establishes both personal liability and long-arm jurisdiction under CPLR 302(a).

Accordingly, the court granted plaintiff’s motion for leave to amend, and deemed plaintiff’s Proposed Amended Complaint served upon service of a copy of the within order with notice of entry.

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The rule defines “artificial intelligence” (“AI”) as

a machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations or decisions influencing real or virtual environments, and that uses machine- and human-based inputs to perceive real and virtual environments, abstract such perceptions into models through analysis in an automated manner, and use model inference to formulate options for information or action. (Section 161.2.)

The rule embodies the following policy:

[T]he use by attorneys and parties of artificial intelligence tools in preparing papers submitted to a court should not be prohibited, as long as such use is in accordance with the duties and responsibilities that apply to individuals who submit papers to a court. Since those duties and responsibilities already apply to all submissions, regardless of whether AI tools were used, attorneys and parties should not be required, upon submitting papers, to disclose to the court that they have used AI in the preparation of such papers. (Section 161.3.)

It provides the following Model Rule as to the use of AI technology in preparing court papers:

Every attorney or party who uses an artificial intelligence (AI) tool in preparing any paper submitted to this court is expected to understand that tool’s capabilities and limitations. Attorneys and parties need to be aware that AI tools, among other risks and limitations, can generate fabricated information or fictitious citations to authority (commonly known as hallucinations). Under existing authority, by signing a paper and submitting it to this court, an attorney or party certifies that the paper does not contain any false material factual statement or any frivolous legal argument Cree, e.g, 22 NYCRR 130-1.1, 130-1.1a), and an attorney who submits any paper to this court is additionally bound by the Rules of Professional Conduct. Accordingly, any attorney or party who uses an artificial intelligence tool, as defined in 22 NYCRR 161.2(a), in preparing any paper, as defined in 22 NYCRR 161.2(b), filed in or submitted to this court or served on another party in a case before this court is required to carefully review the paper and independently ensure that it contains no fabricated or fictitious cases, statutes, or other material. By signing such paper, an attorney or party certifies that such a review has been conducted and that the paper contains no such fabricated or fictitious content. If this court determines that this requirement has not been satisfied, such attorney or party may be subject to sanction or other remedial action. (Section 161, Appendix A.)

Accordingly, the rule confirms that New York attorneys, in connection with their practice in New York courts, may use AI technology, with the caveat that they must use this technology responsibly, and remain subject to the rules, applicable in the non-AI context, such as the Rules of Professional Conduct and Part 130.

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From the decision:

[Plaintiff] argues that he was subjected to repeated hostile treatment connected to his race and national origin. Id. at 3 (“When Plaintiff would respond to radio transmissions, the party on the other side would frequently state ‘22,’ which is code for ‘repeat.’ ”); id. (“Although an occasional request to repeat would be understandable, the volume of these requests was unreasonable and meant to demean Mr. Laghari based on his accent.”); id. (“Other COs, even those with accents, did not experience anywhere close to the number of ‘22’ requests.”).

Mr. Laghari also relies on allegations that “Plaintiff would often receive calls wherein the other party would hang up as soon as Plaintiff answered,” id., and that he saw graffiti stating “Go back to Corrigan. Corrigan does not want him” and “POS list” followed by “SMOL” or “suck me off Laghari,” id. at 4. He further argues that, “[w]hen viewed in the context of the totality of the circumstances and deciding all inferences in favor of Plaintiff, the graffiti and ‘chicken balls’ note demonstrate the severity of the racially and ethnically based harassment experienced by Mr. Laghari.” Id. at 10

The DOC argues that Mr. Laghari has not plausibly alleged a hostile work environment because “Plaintiff does not specifically assert a hostile work environment claim in his Complaint” and, “[i]n fact, he does not even mention the term ‘hostile,’ but mentions the word ‘harassment’ four times in his Complaint.” Def.’s Mem. at 19.

The DOC further argues that, “[t]o the extent Plaintiff does attempt to state a hostile work environment claim, it is legally insufficient because Plaintiff fails to plausibly allege that the work environment was sufficiently severe and pervasive to alter the conditions of his employment, and that any of the acts alleged in the Complaint were based on any of his protected categories.” Id.

The DOC also argues that Mr. Laghari “fails to identify the perpetrators or allege how frequently this happened or provide any further details whatsoever to establish that these incidents were ‘severe and pervasive’ to constitute a hostile work environment.” Id. at 21. In the DOC’s view, the alleged incidents involving supervisors “only suggest isolated incidents of conduct that does not even appear offensive and at best describe interactions and feedback between Plaintiff and his superiors on work-related matters,” and the bathroom graffiti allegations “do not even establish that these statements were directed to the Plaintiff or that the note left at his desk about chicken was connected to his protected categories or was offensive in any way.” Id. at 21–22.

The Court agrees in part, and disagrees in part.

At this stage, the Court must consider the alleged incidents collectively, rather than isolate each event and ask whether that event alone would establish a hostile work environment. Under Harris, whether an environment is hostile or abusive “can be determined only by looking at all the circumstances,” including “the frequency of the discriminatory conduct,” “its severity,” whether it is “physically threatening or humiliating,” and whether it “unreasonably interferes with an employee’s work performance.” Harris, 510 U.S. at 23.
When viewed together, Mr. Laghari’s allegations plausibly suggest that the alleged conduct was not merely episodic workplace friction, but part of a broader pattern of discriminatory hostility. Mr. Laghari alleges that, after his transfer to YCI, he “continued to experience acts of discrimination, harassment and retaliation,” id. ¶ 10; that radio requests to repeat were made “frequently,” id. ¶ 11; that harassing phone calls were “frequent,” id. ¶ 13; that he was “continuously” assigned undesirable posts with “lifers,” id. ¶ 17; and that the bathroom graffiti “was not removed for several weeks,” id. ¶ 20.

The DOC may ultimately be correct that the alleged incidents were isolated, non-discriminatory, or insufficiently severe or pervasive to support liability. But that conclusion would require a more developed factual record. At this stage, Mr. Laghari need not prove that the alleged conduct actually altered the conditions of his employment, he must allege facts making that inference plausible. Vega, 801 F.3d at 87 (“On a motion to dismiss, the question is not whether a plaintiff is likely to prevail, but whether the well-pleaded factual allegations plausibly give rise to an inference of unlawful discrimination.”).

Here, the Complaint alleges repeated radio and phone harassment tied to Mr. Laghari’s accent, derogatory graffiti that could plausibly be read as directed at him, and a delayed or ineffective response after he complained. Compl. ¶ 11 (“This request to repeat was done to demean the plaintiff due to his accent.”); id. ¶ 20 (“Go back to Corrigan. Corrigan does not want him.”); id. ¶ 22 (“The plaintiff sent an email to Warden Sexton (Caucasian female) about what happened, and she replied there would be a meeting called to discuss this, but the meeting never happened.”); id. ¶ 23 (“the plaintiff wrote a letter to DOC commissioner Angel Quiros about the systemic racism at the facility, and he received no meaningful response.”); see also Pl.’s Mem. in Opp’n at 10 (“Frequent radio and telephone harassment; offensive graffiti directed at Mr. Laghari; false accusations of improper job performance; and arbitrary discipline all demonstrate that the harassment experienced by Plaintiff was both severe and pervasive thus fulfilling the first requirements for establishing a hostile work environment claim.”).

The court reached the opposite conclusion, however, as to plaintiff’s hostile work environment theories based on sex or religion, noting that plaintiff “has not identified comparable factual allegations showing that he was subjected to severe or pervasive hostility because of his sex or religion.”

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This decision is instructive on how courts apply the “Faragher Ellerth” affirmative defense to such claims.

The court summarized the facts as follows;

Clark worked for CDR as a debris monitor. Her job stationed her at demolition sites and required her to document the types and amounts of debris Hauling Away removed. While at one of these job sites, Clark claims a Hauling Away employee known to her as “Donkey” pressed his erect penis against her backside while whispering a Spanish word in her. Though Clark doesn’t speak Spanish, she believed the whispering was sexually-natured. Hauling Away removed Donkey from the job site, and Clark immediately reported the incident to her CDR supervisor. But Clark says things only got worse.

Over the next three months, Donkey was assigned to her worksite on multiple occasions. She claims Donkey once smirked and laughed when he came near her. Meanwhile, Hauling Away’s other employees laughed and sexually gestured towards her almost daily. Clark says she complained to her supervisor about continuing to see Donkey, yet admits she never reported the other behavior to anyone. Ultimately, Clark claims the workplace became so unbearable she was forced to quit.

(Internal quotation marks & citations omitted.)

It then summarized, and applied, the law as follows:

To prevail on her hostile work environment claim, Clark must prove five elements: (1) that she belong to a protected group, (2) she was subject to unwelcome harassment, (3) the harassment was based on a protected characteristic, (4) the harassment was sufficiently severe or pervasive to alter the conditions of her employment, and (5) her employer was responsible for the hostile work environment. But even when all these boxes are checked, an employer can dodge liability by mounting a Faragher-Ellerth defense. This defense requires an employer show two things: (1) that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities it provided.

CDR has proven this defense as a matter of law. First, it plainly sought to prevent such behavior. An employer meets this initial burden by showing it published and circulated an anti-harassment policy to its employees. CDR had a clear anti-sexual-harassment policy in place when it hired Clark. It advised her of the policy when it gave her an employee handbook. It referenced the policy during Clark’s orientation and training. And it even furnished Clark with a standalone acknowledgment form expressly detailing the policy— which Clark apparently read, understood, and signed.

Clark claims she does not recall receiving the sexual harassment policy. But she’s got to do better than that. A witness’s inability to remember an event, standing alone, generally does not create a genuine issue of fact for summary judgment purposes. Clark doesn’t deny that she received CDR’s policy. She instead hedges, claiming she cannot remember but it’s possible she did. Nothing about her testimony negates CDR’s evidence. It is thus undisputed that CDR provided Clark with its anti-harassment policy. CDR therefore satisfies the preventative-portion of the test.

The same goes for the corrective-action component. The question of whether an employer timely acted to correct harassment turns on when it had proper notice of an employee’s harassment complaint. Once an employer has promulgated an effective anti-harassment policy and disseminated that policy and associated procedures to its employees, then it is incumbent upon the employees to follow that policy. If an employee reports sexual harassment to the policy’s designated point-person, the employer is deemed on-notice of that conduct. Employers do not have proper notice, however, where an employee sidesteps its policy by complaining to some non-designated person.

CDR’s policy requires employees to immediately report sexual harassment to its HR department. Clark never did this. She instead reported Donkey’s conduct to her supervisor right after it happened. She did not alert HR of the incident until months later, after she had already quit. And she told no one about the harassment the other men were subjecting her to. CDR thus never had proper notice of the sexual harassment she experienced, and therefore was not obligated to take any corrective action. Given this, the first element of CDR’s Faragher-Ellerth defense is satisfied.

Ditto for prong two. Again, this element demands evidence that the plaintiff “unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. An employee’s failure to use her job’s complaint procedure will normally suffice. Clark lodged her concerns outside CDR’s complaint-procedure and offers no reasonable explanation justifying that choice. She thus unreasonably failed to take advantage of CDR’s corrective opportunities.

(Cleaned up; internal quotation marks & citations omitted.)

The court concluded that there was no real dispute over defendant’s Faragher-Ellerth defense, finding that plaintiff failed to refute that she received CDR’s anti-harassment policy, concedes that she raised no concerns to HR until well after the incident date, and admits that she was silent about any subsequent harassment. Based on this, the court concluded that defendant avoid liability, regardless of whether plaintiff’s hostile work environment claim meets all of the elements.

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From the decision:

Ms. Koudoukara brings claims for sex discrimination, sexual harassment, and quid-pro-quo sexual harassment against the Embassy. Mot. 6–14. Title VII makes it unlawful to discriminate against any person “based on sex.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 63 (1986). And “[w]ithout question, when a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor ‘discriminate[s]’ on the basis of sex.” Id. at 64. So “[t]wo types of sexual harassment are actionable under Title VII: quid pro quo and hostile work environment.” Holbrook v. Reno, 196 F.3d 255, 262 (D.C. Cir. 1999). Quid pro quo is “explicit”—it “occurs when an employer alters, or threatens to alter, an employee’s job conditions as a result of the employee’s refusal to submit to sexual demands.” Curry v. District of Columbia, 195 F.3d 654, 659 (D.C. Cir. 1999); Gary v. WMATA, No. 90-3076, 1992 WL 714990, at *3 (D.D.C. Dec. 2, 1992). Meanwhile, a hostile work environment is “constructive”—it is established “when harassing conduct at work is sufficiently pervasive so as to create an abusive working environment.” Curry, 195 F.3d at 659; Gary, 1992 WL 714990, at *3. Importantly, “these labels” merely describe “varying workplace conditions that violate Title VII’s basic prohibition on sex discrimination in terms or conditions of employment.” Gregory v. Daly, 243 F.3d 687, 698 (2d Cir. 2001) (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 751–52 (1998)). Thus, although Ms. Koudoukara brings her quid-pro-quo sexual harassment, sexual harassment, and sex discrimination claims as separate counts, the Court considers them together as a part of her “cause of action for discrimination on the basis of sex[.]” Reid v. Ingerman Smith LLP, 876 F. Supp. 2d 176, 182 (E.D.N.Y. 2012) (using this approach).

Here, Ms. Koudoukara has met her burden of establishing discrimination based on quid-pro-quo sexual harassment. Her claims are governed by the familiar burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To make out a prima facie case, she must show (1) “that she was a member of a protected class,” (2) “that she was subjected to unwelcome sexual advances or requests for sexual favors,” (3) “that the harassment complained of was based on sex,” (4) “that the employee’s submission to the unwelcome advances was an express or implied condition for receiving job benefits or that the employee’s refusal to submit to the supervisor’s sexual demands resulted in an adverse job consequence,” and (5) “that respondeat superior liability exists.” Norris v. WMATA, 342 F. Supp. 3d 97, 121 (D.D.C. 2018).

Ms. Koudoukara has done just that. She has declared under penalty of perjury (1) that she is a female previously employed by the Embassy, (2) that her supervisor Ambassador Berthe repeatedly requested sexual favors from her, (3) that such sexual favors were sought from female employees but not male employees, and (4) that she was terminated due to her refusal to have sex with the Ambassador. Koudoukara Aff. ¶¶ 2–6, 8–12. This is certainly enough to demonstrate the first four prongs of a prima facie claim. See Norris, 342 F. Supp. 3d at 121. Ms. Koudoukara further declared that she reported the Ambassador’s concerning behavior to the Embassy’s human resources, who took no action. Koudoukara Aff. ¶¶ 7, 10. And such “attempts to complain about her supervisor’s harassing behavior, which were ignored,” is more than enough to show respondeat superior liability for sexual harassment. Chadwick v. District of Columbia, 56 F. Supp. 2d 69, 71 (D.D.C. 1999). Thus, Ms. Koudoukara has made out a prima facie claim of quid pro quo sexual harassment.

Normally, “[i]f a plaintiff establishes a prima facie case of discrimination, ‘[t]he burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the [adverse employment action].” Stanford v. Howard Univ., No. 23-cv-3041, 2025 WL 3062907, at *3 (D.D.C. Nov. 3, 2025) (quoting McDonnell Douglas, 411 U.S. at 802). But here, the Embassy defaulted and thus, failed to articulate any nondiscriminatory reason. See Guerra v. Bros. Builders, LLC, No. 23-cv-1291, 2025 WL 2709631, at *1 (D.D.C. Sep. 23, 2025).

Accordingly, the court held that the motion would be granted.

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Plaintiff also claims that Defendant created a “hostile hiring environment” under these same federal statutes by failing to hire him. AC ¶ 3. The Amended Complaint cites to no authority indicating that such a claim exists, nor is the Court independently aware of any such authority. In asserting this claim, the Amended Complaint cites only to case law concerning hostile work environment. See, e.g., id. ¶ 23. But that claim is unavailable to Plaintiff under the federal laws at issue here, because he was never employed by Defendant or otherwise part of its work environment. See Banks v. Gen. Motors, LLC, 81 F.4th 242, 261 (2d Cir. 2023) (explaining that a hostile work environment plaintiff must show “that 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” (emphasis added) (internal quotation marks and citation omitted)).5 That is fatal. See Perelman, 2026 WL 696886, at *8 (“[S]omeone who was never interviewed, let alone hired, cannot state a hostile work environment claim.”); see also Areu v. Fox News Network, LLC, No. 20-cv-08678 (RA), 2021 WL 4124226, at *8 (S.D.N.Y. Sept. 9, 2021) (“[A]n employer logically cannot discriminate against a person in the ‘conditions or privileges of employment if no employment relationship exists,” because “[i]t is inherent in the definition of a hostile work environment that the person against whom the hostility is directed must be in an employment relationship with the employer.” (first quoting Wang v. Phx. Satellite Television US, Inc., 976 F. Supp. 2d 527, 532 (S.D.N.Y. 2012); and then quoting Wimmer v. Suffolk Cnty. Police Dep’t, 176 F.3d 125, 136 (2d Cir. 1999))); Ruggiero v. Dynamic Elec. Sys. Inc., No. 12-cv-00100 (ILG), 2012 WL 3043102, at *8 (E.D.N.Y. July 25, 2012) (discussing Title VII and explaining that “every iteration of the elements of a hostile work environment claim has required an existing employer-employee relationship and a showing that the harassment substantively affected the plaintiff’s working conditions”).

In his opposition to Defendant’s motion to dismiss, Plaintiff cites several cases purportedly supporting the premises that Title VII’s protection of job applicants also “extends to [hostile work environment]” claims, Opp. at 10 & n.2, and that an employer’s harassing conduct prior to an employee’s start date may be relevant to a hostile work environment claim, see id. at 10 & n.3. None of those cases demonstrates the existence of a claim for hostile hiring environment (or so-called “hostile professional ostracism,” id. at 11), and none undermines the Court’s conclusion that a plaintiff cannot bring a hostile work environment claim against an employer for whom he has never worked in any capacity. See, e.g., Popat v. Levy, 253 F. Supp. 3d 527, 531 (W.D.N.Y. 2017) (characterizing plaintiff’s hostile work environment claim as “arising out of his employment”); Morales-Evans v. Admin. Office of the Courts of N.J., 102 F. Supp. 2d 577, 587 (D.N.J. 2000) (finding “evidence of post-interview but pre-employment harassment” relevant to “the hostile work environment inquiry” for plaintiff who was ultimately employed by defendant); Opp. at 10 nn. 2-3 (citing both Popat and Morales-Evans).

Accordingly, the court concluded that plaintiff’s hostile hiring environment claim — both as pleaded and construed liberally as a hostile work environment claim — would be dismissed.

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From the decision:

Generally, a valid release constitutes a complete bar to an action on a claim which is the subject of the release” (Centro Empresarial Cempresa S.A. v. América Móvil, S.A.B. de C.V., 17 N.Y.3d 269, 276, 929 N.Y.S.2d 3, 952 N.E.2d 995 [internal quotation marks omitted]; see Applewhite v. 112 Liberty Assoc., LLC, 233 A.D.3d 834, 834, 223 N.Y.S.3d 275). “A release may be invalidated, however, for any of the traditional bases for setting aside written agreements, namely, duress, illegality, fraud, or mutual mistake” (Applewhite v. 112 Liberty Assoc., LLC, 233 A.D.3d at 834, 223 N.Y.S.3d 275 [internal quotation marks omitted]; see Wei Qiang Huang v. Llerena–Salazar, 222 A.D.3d 1033, 1033, 203 N.Y.S.3d 341). “[A] signed release shifts the burden … to the [plaintiff] to show that there has been fraud, duress or some other fact which will be sufficient to void the release” (Centro Empresarial Cempresa S.A. v. América Móvil, S.A.B. de C.V., 17 N.Y.3d at 276, 929 N.Y.S.2d 3, 952 N.E.2d 995 [internal quotation marks omitted]; see Ming Long Liu v. Kirkwood, 222 A.D.3d 861, 862, 199 N.Y.S.3d 705).

“In resolving a motion for dismissal pursuant to CPLR 3211(a)(5), the plaintiff’s allegations are to be treated as true, all inferences that reasonably flow therefrom are to be resolved in his or her favor, and where, as here, the plaintiff has submitted an affidavit in opposition to the motion, it is to be construed in the same favorable light” (Applewhite v. 112 Liberty Assoc., LLC, 233 A.D.3d at 835, 223 N.Y.S.3d 275 [internal quotation marks omitted]; see Wei Qiang Huang v. Llerena–Salazar, 222 A.D.3d at 1034, 203 N.Y.S.3d 341).

Here, in support of their motion, the defendants submitted, inter alia, a copy of the release signed by the plaintiff, the NYCTA, and the plaintiff’s union representative, which, by its terms, barred this action against the defendants (see Wei Qiang Huang v. Llerena–Salazar, 222 A.D.3d at 1034, 203 N.Y.S.3d 341). In opposition, however, the allegations in the plaintiff’s affidavit were sufficient to raise questions of fact as to whether the release was signed by the plaintiff under circumstances that indicate unfairness and whether it was not “fairly and knowingly” made (Sacchetti–Virga v. Bonilla, 158 A.D.3d 783, 784, 73 N.Y.S.3d 194 [internal quotation marks omitted] ). The plaintiff averred, among other things, that he “did not sign [the] agreement voluntarily,” “was not given a chance to thoroughly read the agreement before [he] signed it,” “was never told that the agreement would somehow bar [him] from bringing claims of discrimination or failure to accommodate based on [his] medical marijuana prescription,” and “was not told to consult with an attorney, nor was [he] given time to contact an attorney.” Accordingly, the Supreme Court should not have granted the defendants’ motion pursuant to CPLR 3211(a) to dismiss the complaint on the ground that the action was barred by the release.

However, the court held that the Supreme Court should have granted defendant’s motion to dismiss the complaint on the ground that it failed to state a cause of action, under CPLR 3211(a)(7). Specifically, the court held that plaintiff failed to make out claims for disability discrimination, as well as hostile work environment.

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