Recognizing Inaction and Sexist Remarks as Basis for Gender Discrimination and Hostile Work Environment Under New York's Human Rights Law
Introduction
Mikesh v. County of Ulster, 2025 NYSlipOp 01987 (App. Div. 3d Dept. Apr. 3, 2025), concerns Heather Mikesh’s claims under New York’s Human Rights Law (Executive Law § 296) against her employer—the County of Ulster—and two supervisors, Finance Commissioner Burt Gulnick Jr. and principal account clerk supervisor Wendy Trojak. Mikesh alleged that Trojak subjected her to persistent bullying and harassment, and that Gulnick’s sexist remarks and refusal to address the problem fostered a hostile environment, culminating in her demotion and eventual resignation. The trial court granted defendants’ motion for summary judgment dismissing all claims. On appeal, the Third Department reversed, holding that the record presents triable issues of fact on gender discrimination, hostile work environment, and retaliation.
Summary of the Judgment
The Appellate Division reversed the trial court’s grant of summary judgment to defendants. It found that:
- Mikesh established the elements of a prima facie gender discrimination claim: she belonged to a protected class, suffered adverse employment actions (demotion and wage decrease), was qualified for her positions, and can show circumstances giving rise to an inference of discrimination.
- Gulnick’s repeated sexist comments—preferring “30 men” over women and dismissing workplace disputes as “women being nasty”—together with his refusal to intervene against Trojak’s harassment, created a factual dispute whether gender animus motivated Mikesh’s adverse treatment.
- The record also supports Mikesh’s hostile work environment claim: the harassment was severe and pervasive, enabled by supervisory inaction grounded in discriminatory beliefs.
- Finally, Mikesh’s participation in internal complaints and two mediations constituted protected activity, and her demotion and termination immediately thereafter allow a reasonable inference of retaliation.
Because reasonable jurors could conclude that discriminatory animus and pretextual justifications drove the adverse actions, summary judgment was improper.
Analysis
Precedents Cited
The court relied on and distinguished several leading Human Rights Law and federal analog cases:
- Cagino v. Levine (199 AD3d 1103 [3d Dept 2021]): Established the four-part prima facie framework for gender discrimination under New York law.
- Chiara v. Town of New Castle (126 AD3d 111 [2d Dept 2015], lv dismissed 26 NY3d 945 [2015]): Held that verbal remarks can evidence discriminatory motive when linked to adverse employment actions.
- Russell v. New York Univ. (42 NY3d 377 [2024]): Clarified employer obligations to investigate and remedy discrimination complaints and recognized liability for failure to take reasonable steps.
- Forrest v. Jewish Guild for the Blind (3 NY3d 295 [2004]): Defined what constitutes an adverse employment action in discrimination contexts.
- Long v. Aerotek, Inc. (202 AD3d 1216 [3d Dept 2022]): Set the standard for hostile work environment claims—showing discriminatory intimidation or ridicule that is severe or pervasive.
- Hollandale Apts. & Health Club, LLC v. Bonesteel (173 AD3d 55 [3d Dept 2019]): Described the elements of retaliation under the Human Rights Law.
These precedents guided the Third Department’s analysis of how testimony, remarks, and supervisory inaction can collectively support jury questions on discrimination and retaliation.
Legal Reasoning
The court’s reasoning can be broken down into three core points:
- Inference of Discrimination: Mikesh presented direct evidence—Gulnick’s sexist remarks—and circumstantial evidence—his refusal to address Trojak’s harassment—linking gender animus to her demotion. Under Cagino and Chiara, this suffices to raise a triable issue on the fourth prima facie element.
- Hostile Work Environment: Viewing the record in Mikesh’s favor, Trojak’s daily bullying, coworkers’ mocking, and Gulnick’s active indifference and disparaging comments about women show a work environment permeated with discriminatory intimidation and ridicule. The conduct was continuous and concerted, satisfying Long v. Aerotek.
- Retaliation: Mikesh’s internal complaints and participation in two mediations are protected activities. Gulnick’s awareness of these complaints and his immediate move to demote and effectively terminate Mikesh establish a causal link under Hollandale and Clifton Park Apts. v. NYS Div. of Human Rights (41 NY3d 326 [2024]).
The court emphasized that credibility and motive questions—whether Gulnick’s reasons were pretextual—must be resolved by a jury, not on summary judgment.
Impact
Mikesh v. County of Ulster reinforces and expands employer liability under New York’s Human Rights Law by:
- Confirming that a supervisor’s inaction or refusal to address harassment, combined with discriminatory remarks, can suffice to permit an inference of gender bias.
- Affirming that verbal comments, even colloquial or "joking" statements, are admissible evidence of animus when linked to adverse actions.
- Reiterating that employers must take reasonable steps to investigate and remediate complaints; failure can produce liability.
- Highlighting the threshold for retaliation claims: protected complaints and mediations followed closely by adverse actions.
Future litigants will rely on Mikesh to oppose summary judgment when direct testimony about discriminatory remarks is present. Employers will need robust, timely responses to harassment complaints and clear, documented decision-making to avoid pretext inquiries at trial.
Complex Concepts Simplified
- Prima Facie Case: A basic showing that the plaintiff belongs to a protected class, suffered an adverse action, was qualified, and that discrimination is a plausible reason.
- Adverse Employment Action: Any materially negative change in employment terms—demotion, pay cut, termination.
- Inference of Discrimination: Circumstances from which a jury can reasonably conclude bias motivated the action, including improper remarks tied to employment decisions.
- Hostile Work Environment: Workplace atmosphere “permeated with discriminatory intimidation, ridicule, and insult” so severe or frequent that it alters job conditions.
- Pretext: A false or fabricated reason offered to cover up the true discriminatory motive.
- Retaliation: Adverse treatment following a plaintiff’s protected activity—like reporting harassment—where a causal link can be shown.
Conclusion
Mikesh v. County of Ulster establishes that a combination of persistent bullying, supervisory inaction, and discriminatory remarks can defeat summary judgment on gender discrimination, hostile work environment, and retaliation claims under the Human Rights Law. By underscoring the importance of linking sexist commentary to adverse actions, and by reaffirming that credibility and motive are jury questions, the Third Department’s decision will guide courts in evaluating workplace harassment disputes and shape employer policies to investigate and remedy discrimination promptly.
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