Levine & Blit, PLLC, Rye Brook (Russell S. Moriarty of counsel), for appellant.

Epstein Becker & Green, P.C., New York (David W. Garland of counsel), for respondent.

Order, Supreme Court, New York County (Sabrina Kraus, J.), entered on or about February 26, 2024, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The reasonable accommodation claims (claims 5-6) were properly dismissed as barred by the election of remedies doctrine. The claims are based on the alleged denials of the same underlying requests for accommodations during plaintiff's continuous leave of absence as were at issue in the prior proceeding before the New York State Division of Human Rights (NYSDHR) (see generally Executive Law § 297[9]; Administrative Code of City of NY § 8-502[a]; Wilson v City of New York, 100 AD3d 453 [1st Dept 2012]).

The election of remedies doctrine was not, however, a proper basis to dismiss the sexual harassment claims (claims 1-2) and disability discrimination claims (claims 3-4). The sexual harassment claims are not based on the same underlying facts as were at issue in the NYSDHR proceeding (cf. Benjamin v New York City Dept. of Health, 57 AD3d 403, 403-404 [1st Dept 2008], lv dismissed 14 NY3d 880 [2010]). While both proceedings involved allegations of a hostile work environment during the same period, the claims in the NYSDHR proceeding were based on alleged intimidating and aggressive behavior by one coworker, whereas the claims in the instant action are based on alleged misconduct of a different nature (inappropriate touching) by a different coworker. While the disability discrimination claims are largely based on the same underlying facts as were at issue in the NYSDHR proceeding, that proceeding predated and did not consider the adverse employment action on which the instant claims chiefly rely — namely, plaintiff's alleged termination.

Notwithstanding the foregoing, the sexual harassment claims were properly dismissed on the ground that the alleged misconduct cannot be imputed to defendant, under either the New York State or City Human Rights Law (the NYSHRL and NYCHRL).

As an initial matter, the 2019 amendments to the NYSHRL apply because the instant claims were filed on or after October 11, 2019 (see L 2019, ch 160, §§ 2, 16[b], [d]; see also Golston-Green v City of New York, 184 AD3d 24, 35 n 1 [2d Dept 2020]). These amendments did not alter the rule that an employer may not be liable for a nonsupervisory employee's discriminatory conduct under the NYSHRL unless it encouraged, condoned, or approved it; they simply clarified that the plaintiff was not required to make an internal complaint prior to bringing suit (see Executive Law § 296[1][h]; Reilly v First Niagara Bank, N.A., 173 AD3d 1082, 1083 [2d Dept 2019]). The NYCHRL includes a similar rule that an employer may only be liable for the discriminatory conduct of a nonsupervisory employee where it knew of and "acquiesced in such conduct or failed to take immediate and appropriate corrective action" or should have known of the conduct and "failed to exercise reasonable diligence[*2]" to prevent it (see Administrative Code § 8-107[13][b]).

It is undisputed that the alleged harasser (Michael Drew) was not plaintiff's supervisor and that defendant had in place an anti-discrimination and harassment policy and means of reporting violations thereof. The record reflects that it was not until December 2019 that defendant became aware of the alleged harassment. Plaintiff testified that she complained to a coworker (Faustino Flores) about Drew's conduct earlier, but the record reflects that, notwithstanding his title as "team leader," Flores did not have "managerial or supervisory authority" such that his knowledge could be imputed to defendant (see Administrative Code § 8-107[13][b][2]; see also Melendez v New York City Tr. Auth., 204 AD3d 542, 543 [1st Dept 2022]; Kwong v City of NY, 204 AD3d 442, 446 [1st Dept 2022], lv dismissed 38 NY3d 1174 [2022]). Plaintiff's testimony that she did not feel able to complain to her actual manager because he told her at least once, in an unrelated context years before the key events at issue, to "stop making complaints," is not sufficient to establish that complaining to him would have been futile, especially when she continued to complain to him about other coworkers.

The record further reflects that defendant took immediate and appropriate corrective action once it learned of Drew's conduct, opening an investigation that same day and, upon the conclusion of that investigation two months later, issuing a verbal warning and requiring Drew to undergo additional training. The fact that Drew did not remember receiving the warning is not sufficient to create an issue of fact in view of the evidence, including contemporaneous documentation and plaintiff's own admission in her response to defendant's Statement of Undisputed Material Facts, that it was provided. There is no indication that a warning was not a sufficient response under the circumstances, especially in view of the absence of further complaints about Drew (see Wahlstrom v Metro-North Commuter R.R., 89 F Supp 2d 506, 525-526 [SD NY 2000]).

The disability discrimination claims (claims 3-4) and retaliation claims (claims 7-8) were also properly dismissed because it is clear as a matter of law that plaintiff voluntarily left defendant's employ. Defendant allowed plaintiff to take short- and long-term disability leave until its third-party administrator determined that her disability claim "could no longer be supported," at which point defendant offered three times (once on the phone and twice in writing) to reinstate plaintiff to a comparable position, but she declined. Even if defendant's April 20, 2020 letter, when read in isolation, could reasonably be construed as terminating plaintiff's employment, defendant's subsequent communications make clear that either this was not the letter's intended effect or that, if it was, it was rescinded.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT[*3].

ENTERED: December 24, 2024