N.Y. Supreme Court Justice Debra James has rejected a motion for summary judgment by Sears Roebuck on a claim that a gay former employee at Sears’ Auto Center in Nanuet, N.Y., was subjected to a hostile working environment in violation of New York State’s Human Rights Law, which forbids employment discrimination based on sexual orientation. However, Justice James’ June 28 decision granted Sears’ motion to reject Joseph DeVito’s retaliation claim stemming from a promotion he claims he was denied for complaining about the harassment. The unpublished decision is reported by Lexis, 2013 N.Y. Misc. LEXIS 2784 (N.Y. County).
DeVito was hired as a Customer Service Advisor in October 2006. He claims that “he was routinely exposed to anti-gay comments and ridicule in the workplace, including but not limited to co-workers regularly use of the word ‘faggot’ despite his frequent objections.” He claimed that at least twelve co-workers regularly made “offense comments about homosexuals or homosexuality in his presence during his workday,” and that his repeated complaints to his immediate supervisor did nothing to ameliorate the situation. He complained by email to his supervisor, and just days later a co-worker “made a crude homophobic comment about ‘blow jobs’ and ‘hand jobs.'” He also recounted that a co-worker “made fun of a customer whose car displayed a rainbow sticker, commenting that he did not ‘want to touch that faggot’s car.'” Although DeVito’s supervisor said he would send DeVito’s complaint to higher management, nothing happened.
Finally fed up after waiting for months for things to improve, DeVito sent a new email to the District Manager, who happened to be an openly gay man. This individual promptly asked the Auto Center Manager to speak with DeVito to make clear that such conduct “is not tolerated at any level.'” He also contacted the Human Resources manager to investigate DeVito’s complaints, and ordered implementation of a training program on workplace harassment for the staff. But these efforts, however well intended, were not particularly effective, according to DeVito, who alleged that the hostile working environment continued, that the investigation did not solve the problem, and that after the training meeting was held, “his co-workers commented that they ‘didn’t understand … the point of the meeting’ and for a week ‘made fun about how dumb the meeting was.'”
Ultimately DeVito left Sears after finishing up his college degree to seek better employment, but he was determined to hold the company accountable for what happened to him, pursuing his legal claims. Two of his claims, for violation of the NY City Human Rights Law and a breach of the covenant of good faith and fair dealing, were dismissed by the court with the consent of the parties. DeVito’s employment in Nanuet was not subject to the City law, and New York does not recognize an action for breach of such an implied covenant in an at-will employment relationship. In addition to claiming that he had been made to suffer an unlawful hostile working environment, DeVito alleged that he was passed over for a promotion in retaliation for having made his internal discrimination complaints.
Justice James rejected DeVito’s retaliation claim, finding that he actually had not applied for the promotion he specified in that claim, but she found that his factual allegations concerning hostile environment were sufficient to ground a legal claim.
In support of its motion for summary judgment, Sears alleged that the co-workers were unaware that DeVito was gay and that the company had taken reasonable steps to respond to his complaints.
As to the issue of employees’ awareness of DeVito’s sexual orientation, James wrote, “This court disagrees with Sears and finds that DeVito has raised an issue of fact objectively that he suffered a work environment hostile to homosexuals, given his contemporaneous complaints from the inception of his employment about a work atmosphere generally hostile to homosexuls as well as about continual and recurring hostility toward homosexuals regularly and specifically directed at him. Looking at the totality of the circumstances and giving the non-movant every favorable inference, this court finds that DeVito describes a workplace that was permeated with discriminatory intimidation, ridicule and insult, causing his employment to be altered for the worse.”
Furthermore, she pointed out, Sears’ argument “merely raises an issue with respect to the knowledge and intent of Sears’ employees. Both states of mind implicate questions of credibility that must be resolved by the fact finder at trial.”
Sears also argued that there was no evidence that it had “acquiesced in, condoned, or approved homophobic behavior on the part of its employees,” but the court found that DeVito’s allegation “raised an issue of fact with respect to whether the hostile statements and conduct of his co-workers should be imputed to Sears.” For one thing, he alleged that one of his harassers was his direct supervisor, and harassment by a supervisor subjects the employer to vicarious liability. For another, DeVito’s complaints were not met by prompt responses or improvements in the situation, despite Sears’ knowledge of what was going on based on those complaints, and “DeVito has raised an issue of fact whether Sears’ corrective actions were reasonable as a matter of law, which must be adjudicated by a fact finder at trial.”
Consequently, resolution of the hostile environment claim through a pre-trial motion was inappropriate, because such resolution would depend on credibility determinations to resolve contested fact issues. Justice James set a pretrial conference date of August 27 in case the parties are unable to settle the case, for the purpose of setting a trial date.
DeVito’s lawsuit parallels a similar lawsuit by another former Sears employee, Robert Cole, who was originally a co-plaintiff with DeVito, but whose case was severed “since Cole’s and DeVito’s title/positions and periods of employment at Sears differed (i.e. DeVito continued as an employee of Sears, after Cole was terminated) and neither played any role in any adverse employment decision suffered by the other.” Part of the hostile environment alleged by Sears involved co-worker comments suggesting some sexual relationship between DeVito and Cole, including crude sexually explicit restroom graffiti which allegedly remained on the wall for some time after DeVito complained to supervison about it. Another part of the alleged hostile environment included homophobic comments about the openly gay District Manager. If DeVito’s allegation are, in fact, true, it sounds like the Sears Auto Center in Nanuet during the years in question was a hotbed of homophobic vituperation among the employees that included contempt for gay customers.