Kulick v. Gordon Property Group LLC

Background

Annette Kulick sued her employer, Gordon Property Group, LLC (GPG), and Mark Borteck. She alleged gender discrimination, a hostile work environment, and retaliation under Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law (NYSHRL), and the New York City Human Rights Law (NYCHRL). Kulick worked as Borteck’s Executive Legal Assistant and testified that he directed her daily work.

The evidence included disputes about Borteck’s treatment of Kulick, sexually explicit material in his work email account, alleged comments about her clothing and appearance, a conversation with her while she was in or entering a bathroom, and his alleged statement that he wanted to “remain a perv” rather than complete anti-harassment training. Kulick also complained in April and November 2021. The parties disputed the company’s response, whether GPG had assured Kulick that moving to Pennsylvania would not affect her employment, and whether she voluntarily resigned or was terminated.

The court had previously dismissed some claims on a motion to dismiss. The opinion addresses the remaining claims on Defendants’ motion for summary judgment, which asks the court to rule that no genuine dispute of important fact requires a trial. The court also addressed Defendants’ request for attorneys’ fees based on discovery sanctions previously imposed after Kulick failed to fully comply with her discovery obligations.

Summary-Judgment Rulings

The court granted in part and denied in part Defendants’ motion for summary judgment.

Gender discrimination. The court granted summary judgment to GPG on Count IV, Kulick’s NYSHRL gender-discrimination claim, because GPG’s investigations into Kulick’s complaints and corrective steps were enough to show that it did not encourage, approve, or condone Borteck’s alleged discrimination under the applicable standard. The court denied summary judgment on Count VII, the NYCHRL gender-discrimination claim against GPG and Borteck. It concluded that a reasonable jury could find that Borteck treated Kulick less well, at least partly because she was a woman, and that Borteck was her manager or supervisor under the NYCHRL. GPG could therefore be held responsible for his conduct under that law.

Hostile work environment. The court denied summary judgment on Count II, Kulick’s Title VII hostile-work-environment claim against GPG. It held that a jury could find that the alleged exposure to sexually explicit emails, comments, bathroom interaction, and anti-harassment-training statement were sufficiently severe or frequent, viewed together, to create a hostile work environment because of sex. Material factual disputes also remained about whether Borteck was a supervisor under Title VII and whether Kulick was terminated or resigned, which affected GPG’s potential defenses and liability.

The court granted summary judgment to GPG on Count V, the NYSHRL hostile-work-environment claim, for the same basic reason it granted judgment on the NYSHRL gender-discrimination claim: GPG’s investigations and response defeated a finding that it encouraged, approved, or condoned Borteck’s conduct. The court denied summary judgment on Count VIII, the NYCHRL hostile-work-environment claim against GPG and Borteck. Under the NYCHRL, Borteck’s authority to direct Kulick’s daily work made GPG responsible for his alleged conduct.

Retaliation. The court denied summary judgment on all remaining retaliation claims. Count III, under Title VII, proceeds against GPG. Count VI, under the NYSHRL, proceeds against GPG and Borteck. Count IX, under the NYCHRL, proceeds against GPG and Borteck. The court found that Kulick’s April and November 2021 complaints could qualify as protected complaints about discrimination or harassment. It also found factual disputes about whether she was terminated, whether Borteck said he would have allowed her to keep working remotely “if you hadn’t reported the incident,” and whether the timing and change in the remote-work position showed retaliation.

Aiding and abetting. The court granted summary judgment to Defendants on Count X. It held that Kulick’s theory relied on Borteck’s own conduct, and that Borteck could not be liable for aiding and abetting GPG based only on conduct that constituted his own alleged violations.

Claims Proceeding to Trial

The following claims proceed to trial:

- Count II against GPG: Title VII hostile work environment. - Count III against GPG: Title VII retaliation. - Count VI against GPG and Borteck: NYSHRL retaliation. - Count VII against GPG and Borteck: NYCHRL gender discrimination. - Count VIII against GPG and Borteck: NYCHRL hostile work environment. - Count IX against GPG and Borteck: NYCHRL retaliation.

Attorneys’ Fees

The court granted in part Defendants’ motion for attorneys’ fees. Defendants requested $43,044.25 for 67.2 hours of work connected with Kulick’s discovery deficiencies and the fee request. The court found the requested hourly rates and hours reasonable but applied a 15-percent reduction to account for some possible duplication and the impact of the sanction on Kulick. The court awarded Defendants $36,587.61 in attorneys’ fees.

Kulick must pay the award within 30 days of the opinion unless the parties agree to a different schedule. The parties were also ordered to submit a joint letter proposing next steps by September 11, 2026. The court terminated the pending motions at docket entries 80 and 85.