Pesce v. Mendes & Mount, LLP

Background

Therese Pesce sued Mendes & Mount, LLP, Mark Hicks, Eileen McCabe, and Audrey Wilson. She alleged that Mendes violated Title VII of the Civil Rights Act of 1964 and that all defendants violated the New York State Human Rights Law and New York City Human Rights Law. The firm defendants—Mendes, McCabe, and Wilson—moved to dismiss the amended complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The court treated the complaint’s factual allegations as true for purposes of the motion.

Pesce alleged that Hicks, a Mendes client, broke into her Mendes-provided apartment twice in 1989. After Mendes rehired her in 2013, Pesce encountered Hicks at the firm in 2015, when he allegedly entered her office, cornered her, and tried to kiss her. She reported the incident, but Hicks continued to enter the firm’s office. Pesce alleged that he sought her out in 2017 and that, in 2017 and 2018, the firm failed to consistently provide advance notice or enforce a security protocol intended to protect her. In March 2018, after Hicks arrived unaccompanied, Pesce experienced a panic attack, complained to coworkers and Human Resources, and had a cousin contact the police. The Human Resources Director told her that time away from work would be counted against her personal benefit days. Pesce alleged that other employees had been allowed to work from home without losing those days.

Court’s analysis

The court held that Pesce plausibly alleged a continuing violation supporting her Title VII hostile-work-environment claim. Although her Equal Employment Opportunity Commission complaint was filed more than 300 days after some earlier events, the court found that the March 2018 incident could connect the earlier incidents to conduct within the filing period. The court also held that the alleged repeated harassment, the firm’s failure to protect Pesce, and the choice between risking harassment at work or losing benefits plausibly met the requirement that the workplace be objectively hostile or abusive.

The court reached a different conclusion on Pesce’s Title VII discriminatory-action claim. It held that she did not allege that the firm defendants took an adverse employment action because of her sex. Pesce characterized the loss of personal benefit days as retaliation, not gender-based treatment, and did not allege that the defendants failed to protect her because of her sex. The court therefore ruled that this claim must be dismissed.

The court allowed Pesce’s Title VII retaliation claim to proceed. It held that her complaints to coworkers and Human Resources, and the call to police concerning her safety, could qualify as protected activity. The alleged statements by the Human Resources Director, the timing of the loss of personal benefit days, and the allegation that other employees were treated differently plausibly connected the loss of days to her complaints. The court further held that losing personal benefit days could be a materially adverse action even though Pesce did not lose income.

Disposition

Judge J. Paul Oetken granted in part and denied in part the firm defendants’ motion to dismiss. Pesce’s Title VII hostile-work-environment and retaliation claims survived, while her Title VII discriminatory-action claim was dismissed. The court also allowed the parallel state and city law claims to continue because several federal claims survived. The motion at Docket Number 17 was denied as moot. The defendants were ordered to answer the remaining claims within 21 days, and the Clerk was directed to close the motions at Docket Numbers 17 and 22.