In this action, plaintiff Cher Parker alleges, among other things, that, beginning in July 2000, she was subjected to a hostile work environment as a consequence of the conduct of defendant Mohamed Nour Ali (Ali), a co-worker, that she complained to a supervisor, Kenneth Neal, who "did not respond" and that, following the filing of a written complaint with the Metropolitan Transportation Authority (the MTA), their employer, Kenneth Neal retaliated against her. Plaintiff's hostile work environment claim is brought under the New York State Human Rights Law (Executive Law §§ 296 et seq.) and the New York City Human Rights Law (Administrative Code of the City of New York §§ 8-101 et. seq.). Her retaliation claim is brought solely under the New York State Human Rights Law.

In their motion, defendants contend that Ali's alleged conduct - - - about ten offensive remarks made over a two-year period and occasional staring or leering - - - "falls far short of the legal threshold for an actionable hostile work environment". Defendants further assert that plaintiff must demonstrate that the occasional off-color comments were unwelcome to her, a fact which is belied by plaintiff's own conduct in allegedly forwarding salacious material to Ali by e-mail.^[FN1] Whether or not offensive [*2]comments were made by Ali, defendants contend that a hostile work environment claim cannot be maintained against them because they did not encourage or condone such conduct;^[FN2] rather, two days after plaintiff filed a written complaint with the Office of Civil Rights (OCR) in which she was employed, Ali's work station was moved away from hers, an investigation was conducted by the MTA, and remedial action was taken against Ali. Defendants point out that, following such disciplinary action, plaintiff never complained of harassment again. Defendants also contend that plaintiff's claim for unlawful retaliation is without merit because a change in her work schedule is not an "adverse employment action" for which she may sue. Defendants note that, in January 2003 (according to the affidavit of Kenneth Neal, Director of OCR) all OCR employees were instructed to report to work by 8:30 a.m. and stay until 5 p.m. (as opposed to the 8 a.m. to 4:30 p.m. schedule which plaintiff had been following). The schedule change was allegedly implemented to provide better coverage of the office during normal business hours (9:00 a.m. to 5:30 p.m.). It appears that, at plaintiff's request, Kenneth Neal accommodated her need for a continuation of her prior schedule for five months.

In opposition to the motion, plaintiff maintains that defendants' practice of sexual harassment that resulted in a hostile work environment was severe and pervasive enough to alter the terms, conditions and privileges of her employment in violation of the New York State and New York City Human Rights Law. Plaintiff relates that Ali made numerous offensive comments of a sexual nature to her over a period of two years and that she repeatedly asked him to stop doing so. On one occasion (according to plaintiff), she told Kenneth Neal by telephone about the remark and Neal "did not respond and laughed off Parker's concern". Because the MTA failed to investigate plaintiff's complaints or move her desk away from that of Ali, "Ali's inappropriate conduct escalated".^[FN3] Plaintiff also accuses Kenneth Neal of "contribut[ing] to the hostile work environment at the MTA" by asking her to go out socially.^[FN4] Plaintiff cites Kenneth Neal's unilateral decision in January 2003 to [*3]implement a policy requiring employees to begin their work day no earlier than 8:30 a.m. as evidence of retaliatory conduct. She notes that the policy change began several months after she formally complained of sexual harassment and that Kenneth Neal's retaliation also included increasing her job responsibilities and excessively scrutinizing her work.

In reply, defendants submit the affidavit of Kenneth Neal regarding the "misleading and unfounded allegations" of plaintiff. He points out that, while plaintiff often objected to Ali's complaints about her loudness on the telephone, plaintiff's first specific complaint about conduct of a sexual nature was in August 2002. Mr. Neal explains that, although he permitted plaintiff to report to work at 8 a.m. for five months after the schedule change, he believed it was appropriate to direct her to record her arrival at 8 a.m. by sending an e-mail to his secretary and to account for the work she performed from 8 a.m. to 8:30 a.m. Mr. Neal notes that plaintiff's current work assignment is of secretarial nature and that she provides support for the same number of managers as she did prior to the filing of her formal complaint against Ali. Mr. Neal adds that, although plaintiff's work is "closely observed", as Director of the MTA's Office of Civil Rights, he "monitor[s] the activities and performance of all OCR employees under [his] supervision during the work day".

In their reply memorandum of law, defendants repeat their contention that plaintiff has failed to show that Ali's alleged conduct was severe or pervasive, given her deposition testimony that he made "at most, only nine of ten isolated sexually-charged comments over a two-year period". With respect to Ali's "leering", defendants assert that such looks occurred in the context of their ongoing dispute over whether plaintiff was making too much noise and only "on several occasions" did he stare at her breasts. Defendants characterize plaintiff's assertions that she "constantly" complained to Kenneth Neal about Ali as "new" and "contrary to the evidence". According to defendants, "all but two of her reports to Neal were about Ali's complaints about her loudness" and her requests to Kenneth Neal to move her office and raise the cubicle divider were made solely in connection with Ali's noise complaints and not, as she now implies, in response to alleged sexual harassment. Defendants further assert that a 2000 amendment to Public Authorities Law § 1266 (8) specifically exempts the MTA from liability under the New York City Administrative Code, including §§ 8-101 et. seq.

Although Kim Tang v New York City Tr. Auth. (16 Misc 3d 703 [2007]), which is cited by defendants, supports their position that Public Authorities Law § 1266 (8) expressly exempts the MTA from the jurisdiction of local laws, including the employment discrimination provisions of the New York City Administrative Code, this court is not bound by that decision and concludes that, despite the recent amendment to Public Authorities Law § 1266 (8), the Court of Appeals would decide [*4]today, as it did in 1996, that the New York City Transit Authority (and, here, the MTA) is exempt from the reach of the New York City Administrative Code (see Levy v City Commission on Human Rights, 85 NY2d 740 [1996]; see also Everson v New York City Tr. Auth., 2007 WL 539159 [2007]; Muhammad v New York City Tr. Auth., 450 F. Supp. 2d 198 [2006]). In Bogdan v New York City Tr. Auth. (2005 WL 11 61812 [2005]), the federal court noted that, while the amended statute provided that "no municipality . . . shall have jurisdiction " over the MTA, this blanket prohibition appeared to be qualified by a subsequent provision which provided "that only local laws that conflict[ed]' with the Public Authorities Law should be inapplicable and, then, only as to "facilities . . . devoted to . . . transportation and transit services". In this case, the provisions of the New York City Human Rights Law do not conflict with the Public Authorities Law, nor does this action relate to transit services. Accordingly, the MTA is subject to Administrative Code §§ 8-101 et. seq.

Under both the New York State and New York City Human Rights Laws, it is unlawful to retaliate against an employee for opposing discriminatory practices (see Executive Law § 296 [7]; Administrative Code of the City of NY §§ 8-107 [7]). In order to establish a prima facie case of retaliation, a claimant must show that: (1) he or she has engaged in a protected activity; (2) the employer was aware of the employee's participation in such activity; (3) he or she suffered an adverse employment action based upon the activity; and (4) there is a causal connection between the protected activity and the adverse action (see Forrest v Jewish Guild for the Blind, 3 NY3d 295, 313 [2004]). Once plaintiff has met this initial burden, the burden then shifts to defendants to present legitimate, independent and nondiscriminatory reasons to support their actions. Then, if defendants meet this burden, plaintiff has the obligation to show that the reasons put forth by defendants were merely a pretext (see Pace v Ogden Servs. Corp., 257 AD2d 101, 104 [1999]).

The record shows, and the parties do not dispute, that plaintiff engaged in a protected activity, i.e., "opposing or complaining about unlawful discrimination" (see Forrest v Jewish Guild for the Blind, supra, at 313), through her written complaint of August 28, 2002. It is defendants' contention, however, that plaintiff has failed to tender sufficient evidence that she suffered a disadvantageous employment action based upon that activity and that, even if the change in plaintiff's work schedule constituted an adverse employment action, they have presented legitimate and nondiscriminatory reasons for the change. Neither unfavorable schedules or work assignments, nor excessive work, nor a supervisor's general negative treatment are material adverse changes in the terms, conditions or privileges of employment (see Forrest v Jewish Guild for the Blind, supra, at 307 [2004]). Even assuming, however, that the new work schedule constituted an adverse employment action, defendants have established a legitimate business reason for requiring plaintiff and all other employees in her department to be on duty by 9 a.m. Moreover, as an accommodation to plaintiff, she was granted an exemption of five months before [*5]having to comply. In response, plaintiff failed to raise an issue of material fact which would lead to the conclusion that the proffered reasons were a pretext for discrimination (see Thompson v Lamprecht Transport, 39 AD3d 846 [2007]). Therefore, plaintiff's retaliation claim - - - her fourth cause of action - - - is dismissed.

In her first and second causes of action, plaintiff has alleged violations of the New York State Human Rights Law and the New York City Human Rights Law, respectively, claiming that she was subjected to a hostile work environment because of the alleged sexual harassment by Ali.^[FN5] "A hostile work environment exists, when, as judged by a reasonable person, it is permeated by discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the circumstances of plaintiff's employment" (McIntyre v Manhattan Ford, Lincoln-Mercury, 175 Misc 2d 795, 802 [1997]). Isolated remarks or occasional episodes of harassment will not support a finding of a hostile or abusive work environment (see Macksel v Riverhead Central School Dist., 2 AD3d 731 [2003]). In any event, even if the alleged harassment were severe or pervasive, it may only be imputed to the employer if the employer became a party to the conduct by encouraging, condoning or approving it (see Sormani v Orange County Community College, 240 AD2d 724, 725 [1997]).

In determining whether a workplace environment is hostile, courts must consider "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance" (Quinn v Green Tree Credit Corp., 159 F3d 759, 767-768 [1998], quoting Harris v Forklift Systems, Inc., 510 U.S. 17 [1993]). Both plaintiff's deposition testimony and the contents of a diary which she kept refer to repeated acts of harassment of a sexual nature by Ali. According to plaintiff, aside from Ali's leering on a frequent basis, he often addressed her regarding the nature of her attire, her boyfriend and his own personal relationships and sexual practices. Ali is also alleged to have confronted plaintiff with inappropriate magazine and computer images. Under the circumstances, an issue of fact exists as to whether plaintiff's workplace was permeated by conduct so severe or pervasive as to alter the circumstances of her employment. Nevertheless, in spite of the nature and extent of Ali's alleged misconduct, the evidence does not support plaintiff's contention that defendants condoned or acquiesced in Ali's words and deeds. According to plaintiff's testimony, she felt embarrassed by Ali's remarks and actions and revealed the extent of her harassment only to her roommate. Aside from advising Kenneth Neal about Ali's flirtatious comment regarding the company picnic in August 2000 and generalized complaints about Ali's staring at her (which frequently arose during their confrontations about the volume of plaintiff's [*6]conversations), the extent of Ali's alleged harassment was not brought to the attention of supervisory personnel at OCR (such as Kenneth Neal) until her formal written complaint in August 2002. While Kenneth Neal may have failed to heed plaintiff's plea for her desk to be moved or for a divider for her cubicle until 2002, this action does not involve the propriety of defendants' response to Ali's unfounded complaints about plaintiff. Since the evidence is insufficient to establish that defendants were aware of the sexual harassment of plaintiff by Ali or that they approved or condoned Ali's conduct (see Martinez v Triangle Maintenance Corp., 293 AD2d 721 [2002]), the motion is likewise granted with respect to the first, second and third causes of action herein.

The foregoing constitutes the decision and order of this court.

E N T E R,

J. S. C.