The case concerned an ALJ who alleged that she was terminated because of her age, sex and retaliation for her speech under the NYS Constitution. She sought to amend her Free Speech Claim to assert a 1983 claim and the court held that a Notice of Claim was not required.
The court also held that the lower court erred by dismissing plaintiff's sexual harassment claims and appeared to apply a much more liberal standard than federal courts do. As the court explained:
Here, the Supreme Court erred in granting those branches of the defendants' motion which were pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging employment discrimination on the basis of sex and age in violation of the NYCHRL (see Administrative Code of City of NY § 8-107[1][a][3]). The allegation that a coworker repeatedly demonstrated a sex toy to the plaintiff was sufficient to state a cause of action to recover damages for sexual harassment in violation of the NYCHRL (see Nelson v HSBC Bank USA, 87 AD3d 995, 999). Further, in opposition to the defendants' motion, the plaintiff submitted an affirmation of a separate coworker detailing further allegations of sexual harassment directed toward the plaintiff. The court erred in determining that the cause of action must be dismissed because the behavior constituted no more than petty slights or trivial inconveniences. A contention that the behavior was a petty slight or trivial inconvenience constitutes an affirmative defense (see Williams v New York City Hous. Auth., 61 AD3d 62, 80), which should be raised in the defendants' answer and does not lend itself to a pre-answer motion to dismiss (see Kaplan v New York City Dept. of Health & Mental Hygiene, 142 AD3d 1050, 1051).Further, the allegations of disparate treatment of older employees, including the plaintiff, and that the plaintiff's demotion was based, in part, on age discrimination, sufficiently stated a cause of action to recover damages for age discrimination in violation of the NYCHRL (see Administrative Code of City of NY § 8-107[1][a][3]; Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 40; cf. Askin v Department of Educ. of the City of N.Y., 110 AD3d 621, 621-622). The fact that the individual defendants were approximately the same age as the plaintiff does not render the cause of action insufficient (see Rollins v Fencers Club, Inc., 128 AD3d 401, 402).
The Supreme Court also erred in granting dismissal of the cause of action alleging unlawful retaliation based on the plaintiff's complaints of sexual harassment. Under the NYCHRL, the retaliatory act or acts complained of "must be reasonably likely to deter a person from engaging in protected activity" (Administrative Code of City of NY § 8-107[7]; see Brightman v Prison Health Serv., Inc., 108 AD3d 739, 739). The allegations that, following the plaintiff's complaint to a supervisor concerning alleged sexual harassment, the plaintiff was assigned double the normal workload, subjected to increased scrutiny of her work and reprimands for minor errors, and ultimately demoted a few months later, sufficiently stated a cause of action to recover damages for unlawful retaliation for the plaintiff's complaints of sexual harassment in violation of the NYCHRL (see Ananiadis v Mediterranean Gyros Prods., Inc., 151 AD3d 915, 920; Fletcher v Dakota, Inc., 99 AD3d 43, 51-52; Williams v New York City Hous. Auth., 61 AD3d at 71). However, the complaint failed to allege that the plaintiff ever complained about the alleged age discrimination, and thus the court properly granted dismissal of the cause of action alleging unlawful retaliation based on complaints of age discrimination.