Ultimatum meeting in sexual harassment case not enough for constructive discharge claim under New York City HRL

The Court of Appeals has ruled that a woman who was told by supervisors that she had to work in the same unit as the man who had sexually harassed her for more than six years cannot make out a constructive discharge claim under the New York City Human Rights Law.

The case is Tulino v. City of New York, a summary order issued on June 3. I represented the plaintiff on appeal. The oral argument is at this link. Plaintiff sued the City for sexual harassment, retaliation, and constructive discharge. The discharge claim was dismissed mid-trial under Rule 50(a), as the trial court determined that no reasonable jury could find in her favor on that claim. The jury ruled in plaintiff's favor on the harassment and retaliation claims, awarding her more than $1 million in damages. See 2019 WL 3810975 (S.D.N.Y. Aug. 1, 2019). The constructive discharge claim was appealed on the basis that no reasonable woman can be expected to remain on the job if she has to continue working for the harasser.

After the agency investigated plaintiff's internal sexual harassment complaint and determined that the complaint could not be corroborated, two senior agency officials told plaintiff that her charge had "offended the agency" and that she had "no place here" if she did not return to the harasser's division (she and the harasser were temporarily separated during the investigation, which plaintiff alleges was faulty). Plaintiff quit rather than work with the harasser, as the multi-year harassment had caused her significant pain and suffering. The Court of Appeals (Wesley, Livingston and Menashi) affirms the trial court's JMOL ruling, holding that these comments were made in the context of other job offers within the agency, the lack of any active disciplinary investigations against plaintiff, her civil service protections, and her transfer to a different supervisor. Plaintiff argued on appeal, however, that she had not ruled out working elsewhere in the agency and, contrary to the City's position at trial, she did not demand that she remain in her unit. This factual dispute, she argued, was for the jury. The Second Circuit disagreed.

Plaintiff did ask the Second Circuit to certify this case to the New York Court of Appeals to clarify the standards guiding constructive discharge claims under the New York City Human Rights Law, which requires a more liberal statutory construction. In 2015, the First Department said the courts have not yet settled upon such a standard, and the Second Department made the same observation in May 2020, one week before oral argument in this case. Simmons-Grant v. Quinn Emanuel Urquhart & Sullivan, LLP, 981 N.Y.S.2d 89, 92 n.1 (1st Dep’t 2014); Golston-Green v. City of New York, -- N.Y.S.3d --, No. 2016–02462, 2020 WL 2462411, at *9 (2d. Dep’t May 13, 2020). But in 2019, the First Department restated the tight Title VII constructive standard in a City HRL case without referencing the liberal statutory construction. Crookendale v. New York City Health & Hospitals Corporation, 107 N.Y.S.3d 282 (1st Dep’t 2019). In a footnote, the Second Circuit notes this lack of clarity on this issue, but it determined that plaintiff cannot meet any constructive discharge standard, no matter how it is formulated.