11-3361-cv
Mihalik v. Credit Agricole Cheuvreux N. Am., Inc.


                        U NITED S TATES C OURT OF A PPEALS
                             FOR THE S ECOND C IRCUIT




                                 August Term 2012

  (Argued:       September 28, 2012               Decided: April 26, 2013)

                            Docket No. 11-3361-cv




                                   R ENEE M IHALIK ,

                                                 Plaintiff-Appellant,

                                            v.

        C REDIT A GRICOLE C HEUVREUX N ORTH A MERICA , I NCORPORATED ,

                                                 Defendant-Appellee.




Before:
             C HIN , L OHIER ,   AND   D RONEY , Circuit Judges.




             Appeal from a judgment of the United States

District Court for the Southern District of New York

(Batts, J.), dismissing plaintiff-appellant's claims of

gender discrimination and retaliation under the New York
City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq.,

after the district court granted defendant-appellee's

motion for summary judgment.               We conclude that, under the

broader standards of the City law, there are genuine

disputes of material fact that require a trial.

          V ACATED   AND   R EMANDED .




                           B RIAN H ELLER , Schwartz & Perry, LLP, New
                                 York, New York, for Plaintiff-
                                 Appellant.

                           B ARBARA M. R OTH (Dori Ann Hanswirth, on the
                                 brief), Hogan Lovells US LLP, New
                                 York, New York, for Defendant-
                                 Appellee.




C HIN , Circuit Judge:

          In this case, plaintiff-appellant Renee Mihalik

sued her former employer, defendant-appellee Credit

Agricole Cheuvreux North America, Inc. ("Cheuvreux"),

alleging that her supervisor ran the office like a "boys'

club," subjecting her to sexually suggestive comments and

twice propositioning her for sex.                She alleges that when

she refused his sexual advances, he retaliated by berating


                                         - 2 -
her in front of other employees and ultimately firing her.

Mihalik asserted claims of gender discrimination and

retaliation under the New York City Human Rights Law (the

"NYCHRL"), N.Y.C. Admin. Code § 8-107(1)(a), (7).      The

district court granted summary judgment to Cheuvreux,

dismissing the complaint.   We conclude the district court

erred in its application of the NYCHRL.     Because Mihalik

presented sufficient evidence to show there are genuine

disputes of material fact regarding both her claims, we

vacate the district court's judgment and remand for trial.

                    STATEMENT OF THE CASE

A.   The Facts

          With all conflicts in the evidence resolved and

all reasonable inferences drawn in Mihalik's favor, the

facts may be summarized as follows:

     1.   Cheuvreux Hires Mihalik

          In July 2007, Cheuvreux hired Mihalik as a Vice

President of Alternative Execution Services, working under

Chief Executive Officer Ian Peacock.   This position

required Mihalik to sell Cheuvreux's electronic equity

trading services to institutional clients and cultivate


                            - 3 -
them into regular customers.     Cheuvreux hired Mihalik

because she had contacts with several potential clients.

Cheuvreux realized, however, that Mihalik was "coming from

a standing start" and that these relationships were not

"immediately transferable."     Therefore, Cheuvreux did not

set "a hard target" for the revenue she had to generate.

     2.   Mihalik's Treatment

          From the moment Mihalik started, Peacock paid

"special attention" to her, asking her about her

relationship status and whether she preferred older men or

was a "cougar." 1   Immediately, Peacock asked Mihalik to make

sure her travel arrangements for a business trip coincided

with his so they could "enjoy traveling together" and "get

to know each other."     He commented on her appearance often,

telling her she looked "sexy" and that her red shoes meant

she was "promiscuous."     When she wore certain outfits, he

told her that she should "dress like that every day.       You


     1
          In this context, as the district court noted, the term
"cougar" refers to "'a middle-aged woman seeking a romantic
relationship with a younger man.'" Mihalik v. Credit Agricole
Cheuvreux N. Am., Inc., No. 09 Civ. 1251, 2011 WL 3586060, at *2
n.2 (S.D.N.Y. July 29, 2011) (quoting Merriam Webster's Online
Dictionary, http://www.merriam-webster.com/dictionary/cougar
(last visited July 27, 2011)).


                              - 4 -
might get more clients in turn."     About two months after

she started, he asked her if she "fanc[ied] dogging" and

then, when she did not know what that was, described the

sex act to which he was referring.     In response, Mihalik

would always tell Peacock that his behavior was

"inappropriate and unbefitting a CEO."

           Peacock's boorish behavior was typical of the

"boys['] club" atmosphere in the Cheuvreux office.      The

male employees regularly talked about visiting strip clubs

and rated their female colleagues' appearances.      Shortly

after one of Mihalik's female co-workers had given birth,

Peacock joked that he could not see that co-worker because

her "breasts were in the way" and then told her, "[I]f this

job doesn't work out, Scores [a New York strip club] is

hiring."   Upon introducing Mihalik to a new male employee

in January 2008, Peacock told her to "respect" the new

employee because he was "male" and "more powerful" than she

was. 2


     2
          Peacock's recollection of this incident differs
substantially, as he recalls that Mihalik raised the subject of
gender. According to his contemporaneous notes, Mihalik
instigated a fight with the new employee after telling him that
his marketing ideas were "crap." Peacock contends that Mihalik


                             - 5 -
         The male employees also frequently looked at

pornography on their computers and Peacock showed Mihalik

pornography "once or twice a month." 3   In one instance in

August 2007, Mihalik noticed Peacock laughing about

something on his computer screen and, when she asked him

what was so funny, he showed her an image of a man hanging

from his genitals.   He then emailed this image to other

employees.   Also that month, another Cheuvreux employee

emailed Mihalik a video parody of the television series

CSI, in which detectives used a black light to search for

semen residue on a woman's mouth. 4

         In December 2007, Peacock propositioned Mihalik

twice, both times inviting her to spend the night with him




stated in this context, "[L]et's face it Ian, you hired me for
my looks and that's the only reason people do business.
. . . It is because I have breasts and look good."
    3
          Cheuvreux presented evidence that it blocks employees
from accessing pornographic websites on their work computers.
    4
          Cheuvreux alleges that this video originated with
Mihalik and that she sent it to both the Cheuvreux employee and
a client. The email Cheuvreux cites, however, clearly indicates
that Mihalik received the video from the Cheuvreux employee and
she forwarded it only to the client.



                             - 6 -
at the "Cheuvreux flat." 5    Mihalik rejected the overtures,

telling Peacock "in no uncertain terms that [she] had no

interest in a personal relationship with him" and that his

conduct was "offensive and shameful."      After these

rejections, Peacock stopped sitting next to Mihalik at the

trading desk -- where he had sat for the first several

months of her employment -- and began treating her

differently.     Among other things, Peacock began to exclude

her from meetings, berate her in front of other employees,

and criticize the quality of her work.

    3.   Mihalik Complains

         Mihalik first complained about this behavior

around the end of 2007.      By then, however, the head of

human resources had resigned, leaving Peacock responsible

for most employment matters until a replacement was hired

in March 2008.     Thus, beginning in November 2007, Mihalik

complained about Peacock's inappropriate sexual comments to

David Zack, the head compliance officer, instead of

reporting her concerns to human resources .     Zack's only



    5
          Cheuvreux presented evidence that it does not maintain
an apartment or hotel room in New York City.


                               - 7 -
response was, "[Y]ou can't prove it, he's the CEO, and

nobody is going to back you."

         In April 2008, Mihalik presented Zack with a draft

email she intended to send to Peacock.     In the draft email,

Mihalik planned to confront Peacock about criticizing her

in front of her co-workers, calling his behavior "very

unprofessional" and his criticisms "inaccurate," and asking

him to calmly discuss these matters with her in private.

After reviewing the email, Zack advised Mihalik that she

should send it only if she wanted to get fired.

    4.   Mihalik's Performance Problems

         Mihalik's performance was deficient in certain

respects throughout her tenure.     First, her monthly sales

commissions were substantially below those of her peers.

There were, however, mitigating circumstances.     Only one of

Mihalik's clients was actively trading through the sales

desk during her tenure.   While Mihalik had successfully

signed several institutional clients, those clients had to

finish negotiating their contracts with Cheuvreux before

they could generate revenue and these negotiations took

several months.   Some of Mihalik's clients did not begin


                            - 8 -
generating revenue for Cheuvreux until after her discharge.

In contrast, most of her colleagues had established books

of clients who regularly conducted business with Cheuvreux.

         Second, Mihalik did not follow up on some sales

leads in a timely manner.    For example, in August 2007, a

week after Peacock had provided Mihalik and a colleague

with three sales leads, Mihalik emailed the colleague to

ask if he knew "anything about these accounts Ian keeps

asking us about."   At the end of November 2007, she s ent a

similar email to another colleague, asking about a sales

lead that Peacock had originally given her in mid -October.

And in January 2008, Mihalik apologized to an overseas

colleague for not following up with a client as she had

promised, explaining that she was delayed because her

airline had lost her luggage containing her business notes.

         Finally, Mihalik missed approximately thirty-five

days of work during her nine months at Cheuvreux due to

vacations, sickness, and personal reasons.    Mihalik

provided notice and obtained permission for all of her

absences, however, and never exceeded her allotted number

of vacation and sick days.


                             - 9 -
     5.   Mihalik is Discharged

          In April 2008, after she failed to complete an

assignment, Cheuvreux discharged Mihalik.     Peacock had

instructed Mihalik to conduct cold calls for seven days

while he was away on business and to have twenty

conversations with prospective clients each day.     When

Mihalik did not complete the assignment, Peacock scheduled

a meeting with her.     Although initially he had intended

only to give her a performance warning, Peacock ultimately

fired Mihalik after she asked him, in an allusion to his

sexual propositions, "What's not working out[?]     Me and you

or me at the company?"

B.   Proceedings Below

          After her discharge, Mihalik filed a complaint

against Cheuvreux in the Supreme Court of the State of New

York, New York County, alleging gender discrimination and

retaliation in violation of the NYCHRL, N.Y.C Admin. Code

§ 8-107(1)(a), (7).     Mihalik did not assert claims under

federal or state law.     Cheuvreux removed the case to the




                              - 10 -
Southern District of New York on the basis of diversity of

citizenship of the parties. 6

          After the close of discovery, Cheuvreux moved for

summary judgment.   In a memorandum and order filed July 29,

2011, the district court granted Cheuvreux's motion,

relying on the traditional federal standards for

discrimination and retaliation, and noting that it was

"incorporat[ing] the special considerations" for NYCHRL

claims.   Mihalik v. Credit Agricole Cheuvreux N. Am., Inc. ,

No. 09 Civ. 1251, 2011 WL 3586060, at *1, *5-6 (S.D.N.Y.

July 29, 2011) (citing Williams v. N.Y.C. Hous. Auth., 872

N.Y.S.2d 27 (1st Dep't 2009)).

          The district court analyzed Mihalik's gender

discrimination claim using the federal quid pro quo and

hostile work environment theories.     See id. at *6-8.

Considering her claim under the quid pro quo analysis, the

district court concluded that Mihalik failed to show any

connection between Peacock's sexual propositions and any

tangible job detriment, including her discharge.      See id,


    6
          Mihalik is a citizen of New Jersey and Cheuvreux is a
Delaware corporation with its principal place of business in
either New York or California.


                             - 11 -
at *6-7.   The district court held that, alternatively,

Mihalik failed to show that the legitimate non-

discriminatory reason articulated by Cheuvreux for her

dismissal -- her poor job performance -- was pretextual.

See id. at *8.

           Next, the district court performed a hostile work

environment analysis.   See id. at *9-10.   Although the

court took note that plaintiffs are not required to satisfy

the federal "severe and pervasive conduct" standard to

prevail on a claim brought under the NYCHRL, id. at *9; see

Williams, 872 N.Y.S.2d at 37-39, it relied heavily on the

First Department's admonition in Williams v. New York City

Housing Authority that the NYCHRL is not a "'general

civility code,'" Mihalik, 2011 WL 3586060, at *9 (quoting

Williams, 872 N.Y.S.2d at 40-41).    Thus, it held that

Mihalik had merely presented evidence of "'sporadic

insensitive comments,'" rather than an actionable hostile

work environment.   Id. at *9-10 (quoting Fullwood v. Ass'n

for the Help of Retarded Children, Inc., 08 Civ. 6739, 2010

WL 3910429, at *9 (S.D.N.Y. Sept. 28, 2010)).




                            - 12 -
          Finally, the district court considered Mihalik's

retaliation claims.   While recognizing that, under the

NYCHRL, protected activities include "'oppos[ing] any

practice forbidden under this chapter,'" id. at *10

(alteration in original) (quoting N.Y.C. Admin. Code

§ 8-107(7)), the district court held that Mihalik failed to

show a causal connection between her discharge and either

her complaints of harassment or her rejection of Peacock's

propositions.   Id. at *10-11.     The court held that,

alternatively, she had not presented evidence that

Cheuvreux's non-discriminatory reasons for her termination

were pretextual.   See id. at *11.

          Final judgment dismissing all Mihalik's claims was

entered on July 29, 2011.   This appeal followed.

                         DISCUSSION

A.   Applicable Law

     1.   Standard of Review

          We review de novo the district court's grant of

summary judgment, construing the evidence in the light most

favorable to the non-moving party and drawing all

reasonable inferences in her favor.      McElwee v. Cnty. of


                               - 13 -
Orange, 700 F.3d 635, 640 (2d Cir. 2012).       Summary judgment

is appropriate only when "the movant shows that there is no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law."       Fed. R. Civ. P.

56(a).

     2.   The NYCHRL

          For many years, we construed the NYCHRL to be

coextensive with its federal and state counterparts.        See,

e.g., Estate of Hamilton v. City of New York, 627 F.3d 50,

55 (2d Cir. 2010); Leibowitz v. Cornell Univ., 584 F.3d

487, 498 n.1 (2d Cir. 2009); Cruz v. Coach Stores, Inc.,

202 F.3d 560, 565 n.1 (2d Cir. 2000).       In 2005, however,

the New York City Council amended the NYCHRL by passing the

Local Civil Rights Restoration Act of 2005 (the

"Restoration Act"), N.Y.C. Local L. No. 85.       See, e.g.,

Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278

(2d Cir. 2009); Williams v. N.Y.C. Hous. Auth., 872

N.Y.S.2d 27, 36 (1st Dep't 2009) (Acosta, J.); see

generally Craig Gurian, A Return to Eyes on the Prize:

Litigating Under the Restored New York City Human Rights

Law, 33 F ORDHAM U RB . L.J. 255 (2006).   As amended, the NYCHRL


                              - 14 -
requires an independent analysis.      See Restoration Act § 1;

Loeffler, 582 F.3d at 278.   Nonetheless, district courts

continued -- erroneously -- to apply federal standards to

NYCHRL claims.   See, e.g., St. Jean v. United Parcel Serv.

Gen. Serv. Co., No. 12-544-cv, 2013 WL 336006, at *1 (2d

Cir. Jan. 30, 2013) (summary order) ("[T]he district court

erred to the extent it found that federal standards for

recovery are applied in determining employment

discrimination claims under the City HRL . . . ."); Simmons

v. Akin Gump Strauss Hauer & Feld, LLP , No. 11-4480-cv,

2013 WL 261537, at *2 (2d Cir. Jan. 24, 2013) (summary

order) ("[T]he district court erred to the extent that it

. . . analyzed [the NYCHRL claim] under the same standard

as her claims under federal and state law.").

         In amending the NYCHRL, the City Council expressed

the view that the NYCHRL had been "construed too narrowly"

and therefore "underscore[d] that the provisions of New

York City's Human Rights Law are to be construed

independently from similar or identical provisions of New

York state or federal statutes."      Restoration Act § 1.   To

bring about this change in the law, the Act established two


                             - 15 -
new rules of construction.   First, it created a "one-way

ratchet," by which interpretations of state and federal

civil rights statutes can serve only "'as a floor below

which the City's Human Rights law cannot fall .'"     Loeffler,

582 F.3d at 278 (quoting Restoration Act § 1) .     Second, it

amended the NYCHRL to require that its provisions "be

construed liberally for the accomplishment of the uniquely

broad and remedial purposes thereof, regardless of whether

federal or New York State civil and human rights law s,

including those laws with provisions comparably-worded to

provisions of this title[,] have been so construed."

Restoration Act § 7 (amending N.Y.C. Admin. Code § 8-130).

         Pursuant to these revisions, courts must analyze

NYCHRL claims separately and independently from any federal

and state law claims, see Restoration Act § 1; Hernandez v.

Kaisman, 957 N.Y.S.2d 53, 58 (1st Dep't 2012) ; Gurian,

supra, at 275-77, construing the NYCHRL's provisions

"broadly in favor of discrimination plaintiffs, to the

extent that such a construction is reasonably possible,"

Albunio v. City of New York, 16 N.Y.3d 472, 477-78 (2011).

Thus, even if the challenged conduct is not actionable


                             - 16 -
under federal and state law, federal courts must consider

separately whether it is actionable under the broader New

York City standards.   See Hernandez, 957 N.Y.S.2d at 58

("While we find that the complained-of incidents do not

rise to the level of 'severe and pervasive' for purposes of

a claim pursuant to the State HRL, this does not dispose of

the question whether plaintiffs' City HRL claim is still

viable.").

         a.   Gender Discrimination

         Section 8-107(1)(a) of the NYCHRL makes it "an

unlawful discriminatory practice . . . [f]or an employer or

an employee or agent thereof, because of the . . . gender

. . . of any person, to refuse to hire or employ or to bar

or to discharge from employment such person or to

discriminate against such person in compensation or in

terms, conditions or privileges of employment ."    N.Y.C.

Admin. Code § 8-107(1)(a).   Applying the Restoration Act's

new rules of construction, the First Department has

established a new standard of liability for gender

discrimination under the NYCHRL.




                             - 17 -
           Construing the phrase "discriminate against . . .

in terms, conditions or privileges of employment" broadly,

the First Department reasoned that forcing a targeted

employee to suffer "unwanted gender-based conduct" imposes

a different term or condition of employment on her, even if

the harassing conduct does not rise to the level of being

"severe and pervasive."    Williams, 872 N.Y.S.2d at 38.

Therefore, the First Department declined to use the federal

"severe and pervasive" standard for NYCHRL claims and

instead adopted "a rule by which liability is normally

determined simply by the existence of differential

treatment."   Id.   To establish a gender discrimination

claim under the NYCHRL, the plaintiff need only demonstrate

"by a preponderance of the evidence that she has been

treated less well than other employees because of her

gender."   Id. at 39; accord Nelson v. HSBC Bank USA, 929

N.Y.S.2d 259, 264 (2d Dep't 2011) (adopting the same

standard of liability).

           Under this standard, the conduct's severity and

pervasiveness are relevant only to the issue of damages.

See Williams, 872 N.Y.S.2d at 38.     To prevail on liability,


                             - 18 -
the plaintiff need only show differential treatment -- that

she is treated "less well" -- because of a discriminatory

intent. 7   See id. at 39.   Indeed, the challenged conduct

need not even be "'tangible' (like hiring or firing)."        Id.

at 40.

            When applying this standard, however, district

courts must be mindful that the NYCHRL is not a "general

civility code."     Id. at 40-41 (internal quotation marks and

citation omitted).     The plaintiff still bears the burden of

showing that the conduct is caused by a discriminatory

motive.     It is not enough that a plaintiff has an

overbearing or obnoxious boss.     She must show that she has

been treated less well at least in part "because of her

gender."     Id. at 39, 40 n.27 (emphasis added). 8



     7
          We note that our discussion applies only to disparate
treatment claims and that a separate provision of the NYCHRL
applies to disparate impact claims. See N.Y.C. Admin. Code
§ 8-107(17); Levin v. Yeshiva Univ., 96 N.Y.2d 484, 491 (2001);
cf. Ricci v. DeStefano, 557 U.S. 557, 577-78 (2009) (explaining
that, under Title VII, liability for disparate treatment
requires intentional discrimination, but liability for disparate
impact does not).
     8
          It is unclear whether, and to what extent, the
McDonnell Douglas burden-shifting analysis has been modified for
NYCHRL claims. Compare Bennett v. Health Mgmt. Sys., Inc., 936
N.Y.S.2d 112, 116 (1st Dep't 2011) (beginning to consider how


                              - 19 -
         Even if the plaintiff establishes that she was

treated "less well" because of her gender, defendants may

assert "an affirmative defense whereby [they] can still

avoid liability if they prove that the conduct complained

of consists of nothing more than what a reasonable victim


McDonnell Douglas framework should be modified), with Melman v.
Montefiore Med. Ctr., 946 N.Y.S.2d 27, 30 (1st Dep't 2012)
("[N]either the [Restoration Act] nor the City Council report
thereon . . . indicates that the McDonnell Douglas framework is
to be discarded."). Although Bennett seemed to suggest the
analysis has changed, the First Department later narrowly
construed Bennett as only requiring trial courts to consider
whether plaintiff's claim could survive under either the
McDonnell Douglas analysis or a mixed motives theory of
liability. See Melman, 946 N.Y.S.2d at 30. It is unclear how
this differs from the federal standard. See, e.g., Garcia v.
Hartford Police Dep't, 706 F.3d 120, 127 (2d Cir. 2013) ("[T]o
defeat summary judgment . . . the plaintiff is not required to
show that the employer's proffered reasons were false or played
no role in the employment decision, but only that they were not
the only reasons and that the prohibited factor was at least one
of the motivating factors." (internal quotation marks and
citation omitted)).
          It is not necessary to resolve this issue. While it
is unclear whether McDonnell Douglas continues to apply to
NYCHRL claims and, if so, to what extent it applies, the
question is also less important because the NYCHRL simplified
the discrimination inquiry: the plaintiff need only show that
her employer treated her less well, at least in part for a
discriminatory reason. The employer may present evidence of its
legitimate, non-discriminatory motives to show the conduct was
not caused by discrimination, but it is entitled to summary
judgment on this basis only if the record establishes as a
matter of law that "discrimination play[ed] no role" in its
actions. Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d 27, 38,
40 n.27 (1st Dep't 2009); see also Furfero v. St. John's Univ.,
941 N.Y.S.2d 639, 642 (2d Dep't 2012) (citing Bennett, 936
N.Y.S.2d at 124).


                             - 20 -
of discrimination would consider 'petty slights and trivial

inconveniences.'"   Id. at 41 (quoting Oncale v. Sundowner

Offshore Servs., 523 U.S. 75, 81 (1998)).      As with most

affirmative defenses, the employer has the burden of

proving the conduct's triviality under the NYCHRL.        See

Drexel Burnham Lambert Grp. Inc. v. Galadari, 777 F.2d 877,

880 (2d Cir. 1985) (citing Blunt v. Barrett, 124 N.Y. 117,

119 (1891)) ("The party asserting an affirmative defense

usually has the burden of proving it.").      The employer may

prevail on summary judgment if it shows that a reasonable

jury could conclude only that the conduct amounted to no

more than a petty slight.   Williams, 872 N.Y.S.2d at 41.

Thus, courts may still dismiss "truly insubstantial cases,"

where the defense is clear as a matter of law.      Id.

          In evaluating both the plaintiff's claim and the

defendant's affirmative defense, courts must consider the

"totality of the circumstances."     Hernandez, 957 N.Y.S.2d

at 59.   "[T]he overall context in which [the challenged

conduct occurs] cannot be ignored."     Id.   Even "a single

comment that objectifies women . . . made in circumstances

where that comment would, for example, signal views about


                            - 21 -
the role of women in the workplace [may] be actionable."

Williams, 872 N.Y.S.2d at 41 n.30.

         Although the First Department has observed that a

jury is often best suited to make this determination, id.

at 41, we note that summary judgment still can be an

appropriate mechanism for resolving NYCHRL claims.      Even in

this context, summary judgment remains "an integral part of

the Federal Rules [of Civil Procedure] as a whole, which

are designed 'to secure the just, speedy and inexpensive

determination of every action.'"      Celotex Corp. v. Catrett,

477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1).      The

Restoration Act cannot, as a procedural matter, limit our

interpretation of Rule 56.   See Com/Tech Commc'n Techs.,

Inc. v. Wireless Data Sys., Inc., 163 F.3d 149, 150-51 (2d

Cir. 1998) (per curiam) ("[W]here the matter in question is

one covered by the Federal Rules of Civil Procedure, 'it is

settled that . . . the Federal Rule applies regardless of

contrary state law.'" (omission in original) (quoting

Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427

n.7 (1996))).   While the New York City Council may provide

a different substantive standard to be applied to


                             - 22 -
particular claims in federal court, the same federal

procedural rules apply.     See, e.g., id. at 150 ("Under the

Erie doctrine, federal courts sitting in diversity apply

state substantive law and federal procedural law. "

(internal quotation marks omitted)).        Furthermore, even New

York courts continue to grant and affirm the granting of

summary judgment dismissing NYCHRL claims.        See, e.g.,

Melman v. Montefiore Med. Ctr., 946 N.Y.S.2d 27, 44 (1st

Dep't 2012) ("[E]ven after the passage of the [Restoration

Act], not every plaintiff asserting a discrimination claim

will be entitled to reach a jury . . . ."); Bennett, 936

N.Y.S.2d at 123-25 (affirming grant of summary judgment);

Williams, 872 N.Y.S.2d at 42 (same).        Accordingly, district

courts may still grant summary judgment with respect to

NYCHRL claims if there is no genuine dispute as to any

material fact regarding plaintiff's claim and the

employer's affirmative defense.        See Fed. R. Civ. P. 56(a);

Celotex Corp., 477 U.S. at 324.

         b.   Retaliation

         Section 8-107(7) of the NYCHRL prohibits employers

from "retaliat[ing] or discriminat[ing] in any manner


                              - 23 -
against any person because such person has . . . opposed

any practice forbidden under this chapter."   N.Y.C. Admin.

Code § 8-107(7).   The Restoration Act amended this section

to further provide:

               The retaliation or discrimination
               complained of under this subdivision
               need not result in an ultimate
               action with respect to employment,
               . . . or in a materially adverse
               change in the terms and conditions
               of employment, . . . provided,
               however, that the retaliatory or
               discriminatory act or acts
               complained of must be reasonably
               likely to deter a person from
               engaging in protected activity.

Restoration Act § 3 (amending N.Y.C. Admi n. Code

§ 8-107(7)).   Thus, to prevail on a retaliation claim under

the NYCHRL, the plaintiff must show that she took an action

opposing her employer's discrimination , see Albunio, 16

N.Y.3d at 479, and that, as a result, the employer engaged

in conduct that was reasonably likely to deter a person

from engaging in such action, see Williams, 872 N.Y.S.2d at

33-34.

         In accordance with the Restoration Act's rules of

construction, New York courts have broadly interpreted the




                            - 24 -
NYCHRL's retaliation provisions.       See, e.g., Albunio, 16

N.Y.3d at 477-78.     The New York Court of Appeals has held

that "oppos[ing] any practice" can include situations where

a person, before the retaliatory conduct occurred, merely

"made clear her disapproval of [the defendant's]

discrimination by communicating to [him], in substance,

that she thought [his] treatment of [the victim] was

wrong."   Id. at 479.

          Similarly, the First Department has held that "no

challenged conduct may be deemed nonretaliatory" unless "a

jury could not reasonably conclude from the evidence that

such conduct was . . . 'reasonably likely to deter a person

from engaging in protected activity.'"       Williams, 872

N.Y.S.2d at 34.     This "assessment [should] be made with a

keen sense of workplace realities, of the fact that the

'chilling effect' of particular conduct is context -

dependent, and of the fact that a jury is generally best

suited to evaluate the impact of retaliatory conduct."          Id.

    3.    Analysis of NYCHRL Claims

          To summarize, federal courts reviewing NYCHRL

claims are to be guided by the following considerations:


                              - 25 -
(1)   NYCHRL claims must be analyzed separately and

      independently from federal and state

      discrimination claims, see Restoration Act

      § 1; Hernandez, 957 N.Y.S.2d at 58;

(2)   the totality of the circumstances must be

      considered because "the overall context in

      which [the challenged conduct occurs] cannot

      be ignored," Hernandez, 957 N.Y.S.2d at 59;

(3)   the federal severe or pervasive standard of

      liability no longer applies to NYCHRL claims,

      and the severity or pervasiveness of conduct

      is relevant only to the scope of damages, see

      Williams, 872 N.Y.S.2d at 38;

(4)   the NYCHRL is not a general civility code,

      see Williams, 872 N.Y.S.2d at 40, and a

      defendant is not liable if the plaintiff

      fails to prove the conduct is caused at least

      in part by discriminatory or retaliatory

      motives, see id. at 39-40 & n.27, or if the

      defendant proves the conduct was nothing more




                   - 26 -
                than "petty slights or trivial

                inconveniences," id. at 41;

          (5)   while courts may still dismiss "truly

                insubstantial cases," even a single comment

                may be actionable in the proper context, id.

                at 41 & n.30; and

          (6)   summary judgment is still appropriate in

                NYCHRL cases, but only if the record

                establishes as a matter of law that a

                reasonable jury could not find the employer

                liable under any theory, see Melman, 946

                N.Y.S.2d at 30; Furfero v. St. John's Univ.,

                941 N.Y.S.2d 639, 642 (2d Dep't 2012).

B.   Application

          We consider in turn Mihalik's claims of gender

discrimination and retaliation.

     1.   Gender Discrimination

          Applying the standards set out above, we conclude

that the district court erred in granting summary judgment

dismissing Mihalik's gender discrimination claim because

there is a genuine dispute as to whether she was treated


                             - 27 -
less well than her male colleagues because of her gender.

Mihalik presented evidence that men in the Cheuvreux office

"objectified" women by openly viewing and sharing

pornography, discussing their jaunts to strip clubs, rating

the female employees' appearances, and making lascivious

comments about women's outfits and bodies.     See Hernandez,

957 N.Y.S.2d at 59 ("[C]omments and emails objectifying

women's bodies and exposing them to sexual ridicule, even

if considered 'isolated,' clearly signaled that defendant

considered it appropriate to foster an office environment

that degraded women.").    There was even evidence that

Peacock explicitly told Mihalik that male employees should

be respected because they were "male" and thus "more

powerful" than women.     See Williams, 872 N.Y.S.2d at 41

n.30 ("[A] single comment that objectifies women . . .

made in circumstances where that comment would, for

example, signal views about the role of women in the

workplace [may] be actionable.").

         Mihalik was subjected to this environment, and

also had to suffer Peacock's unwanted sexual attention,

including two sexual propositions.     If a jury were to


                              - 28 -
credit Mihalik's testimony, it could reasonably find that

she was treated "less well" than her male colleagues

because of her gender, and that the conduct complained of

was neither petty nor trivial.    Id. at 39, 41; see also

Hernandez, 957 N.Y.S.2d at 57 ("'The mere fact that men and

women are both exposed to the same offensive circumstances

on the job site . . . does not mean that, as a matter of

law, their work conditions are equally harsh.'" (quoting

Petrosino v. Bell Atl., 385 F.3d 210, 221 (2d Cir. 2004))).

            The district court reached a different conclusion

by relying on reasons that find no support in the NYCHRL,

as interpreted by New York courts.    First, the district

court analyzed Mihalik's gender discrimination claim under

two federal standards of liability:    the quid pro quo

analysis -- looking for a connection between the

discriminatory conduct and a materially adverse employment

action -- and a hostile work environment analysis --

looking for conduct severe or pervasive enough to alter the

terms of Mihalik's employment.    Mihalik, 2011 WL 3586060,

at *6-10.    Williams made clear, however, that the NYCHRL

does not require either materially adverse employment


                             - 29 -
actions or severe and pervasive conduct.      See Williams, 872

N.Y.S.2d at 34, 37-39.     Instead, "a focus on unequal

treatment based on gender -- regardless of whether the

conduct is 'tangible' (like hiring or firing) or not -- is

in fact the approach that is most faithful to the uniqu ely

broad and remedial purposes of the local statute."        Id. at

40.   Thus, Peacock's alleged mistreatment of Mihalik would

be actionable under the NYCHRL even if it was unrelated to

her discharge 9 and was neither severe nor pervasive.      Id. at

39.

          Second, the district court concluded that Mihalik

had not shown that Cheuvreux's proffered reason for her

dismissal -- her poor performance -- was a pretext for

discrimination.   Under the NYCHRL, however, differential

treatment may be actionable even if it does not result in

an employee's discharge.     See id. at 40.   Even a poorly-

performing employee is entitled to an environment free from

sexual harassment.   See id. at 38 ("[A]nalysis of the City

HRL must be guided by the need to make sure that


      9
          For reasons discussed more fully in the next section,
there is also a genuine dispute as to Cheuvreux's motivation for
Mihalik's discharge.


                              - 30 -
discrimination plays no role [in the workplace] . . . .").

Therefore, Mihalik's alleged poor performance would not

excuse Peacock's alleged sexual advances and demeaning

behavior.    In other words, even assuming that Mihalik could

not prove she was dismissed for a discriminatory reason or

that Cheuvreux had good grounds for discharging her,

Mihalik could still recover for any other differential

treatment based on her gender. 10

            Finally, the district court concluded that

Mihalik's testimony showed no more than "'sporadic

insensitive comments'" and it granted summary judgment

because the NYCHRL was not a "general civility code."

Mihalik, 2011 WL 3586060, at *9-10 (quoting Fullwood, 2010

WL 3910429, at *9).    This analysis places too much emphasis

on Williams's recognition that the NYCHRL should not

"operate as a 'general civility code,'" and too little

emphasis on its exhortation that even "a single comment"

may be actionable in appropriate circumstances.      See

Williams, 872 N.Y.S.2d at 40-41 & n.30 (quoting Oncale, 523


    10
          Of course, whether Mihalik's discharge resulted from
discriminatory treatment against her would be relevant to the
quantum of damages.


                             - 31 -
U.S. at 81).   Under New York law, a defendant is entitled

to summary judgment based on the conduct's triviality only

if a reasonable jury could not interpret the alleged

comments as anything "more than petty slights or trivial

inconveniences."   Id. at 41.   Construing the evidence in

its totality and in Mihalik's favor, we conclude that a

jury could reasonably find that Peacock's behavior

constituted more than "petty slights or trivial

inconveniences," and that it was sexually-charged conduct

that subjected Mihalik to a different set of employment

conditions than her male colleagues. 11   Accordingly, the

grant of summary judgment dismissing Mihalik's gender

discrimination claim was inappropriate.




    11
          While there is evidence that Mihalik engaged in
similar boorish behavior, such as sending an email to a male
employee that read "hey . . . Stud" or telling another that he
"looked so ripped," it is the province of the jury to weigh this
competing evidence and decide whether it indicates that Mihalik
worked under the same terms and conditions of employment as her
male co-workers or that the challenged conduct was too trivial
to be a basis for liability. Viewing Mihalik's comments in
context, a jury may conclude that they were made in jest, were
less offensive than those allegedly made by the male employees,
or were her attempt to cope with her hostile work environment.
Therefore, we cannot conclude that this evidence shows Cheuvreux
is entitled to judgment as a matter of law.


                             - 32 -
    2.    Retaliation

          Applying the New York courts' interpretation of

the NYCHRL's retaliation provision, we conclude there is a

genuine dispute as to whether Peacock retaliated against

Mihalik for opposing his discriminatory conduct.      First,

there is an issue of fact regarding what occurred in the

April 2008 meeting at which Mihalik was fired.      It is

undisputed that Peacock had no intention of firing Mihalik

before that meeting, but the parties do dispute what

happened during the meeting.   Mihalik testified that

Peacock fired her only after she asked, "What's not working

out[?]   Me and you or me at the company?"     Under the

NYCHRL, by implicitly referencing her rejection of his

sexual propositions, she may have opposed his

discrimination by "communicating to [Peacock], in

substance, that she thought [Peacock's] treatment of [her]

was wrong."   Albunio, 16 N.Y.3d at 479.     If the jury

credits this testimony and finds that Peacock fired Mihalik

because she denounced his sexual propositions in the April

2008 meeting, Peacock would be liable for retaliation under

the NYCHRL.   Thus, the district court erred in concluding


                            - 33 -
that "disputes about details of this meeting are not

relevant."   Mihalik, 2011 WL 3586060, at *3 n.4.

         Second, putting aside what happened at the April

2008 meeting, there is a genuine dispute as to whether

Peacock retaliated against Mihalik in other ways.      A jury

could reasonably find that Mihalik had also opposed

Peacock's discriminatory conduct by rejecting his advances

in December 2007 and telling him that his actions were

"offensive and shameful."    Cf. Albunio, 16 N.Y.3d at 479

(affirming jury's finding that an employee "'opposed'

discrimination" by telling her supervisor, after he

criticized her for recommending a homosexual candidate for

a job, that she would do it again and making clear her

disapproval of her supervisor's discriminatory action). 12

Mihalik testified in her deposition that, after she


12
     We offer no opinion on whether merely rejecting a sexual
advance is cognizable under the federal or state counterparts to
the NYCHRL. Compare LeMaire v. Louisiana Dep't of Transp. &
Dev., 480 F.3d 383, 389-90 (5th Cir. 2007) ("rejecting sexual
advances" in and of itself is not a protected activity under
Title VII), with Ogden v. Wax Works, 214 F.3d 999, 1007 (8th
Cir. 2000) (rejecting advance and telling supervisor to stop his
offensive conduct constituted "the most basic form of protected
conduct"). As we caution above, the NYCHRL calls for an
independent analysis that is consistent with its "uniquely broad
and remedial purposes." Restoration Act § 7.


                             - 34 -
rejected Peacock's propositions in this manner, he began to

tell her -- in front of her mostly male colleagues -- that

she "add[ed] nothing of value," that she has "no fucking

clue what [she was] doing," and that she was "pretty much

useless."    Mihalik also alleges that Peacock stopped

sitting next to her at the trading desk and instructed the

staff to exclude her from meetings.

            The jury could find that Peacock's actions were

the result of Mihalik's opposition in December 2007.     While

Cheuvreux presented evidence of flaws in Mihalik's

performance throughout her employment, the company

presented no evidence that anyone confronted her about

these problems before she rejected Peacock's alleged

advances in December 2007.    Indeed, Mihalik alleges that

the meeting in April 2008 was the first time Peacock met

with her to review her performance.    Again, Peacock had no

intention of firing Mihalik before the meeting.    Drawing

all reasonable inferences in Mihalik's favor, we cannot

conclude as a matter of law that there was no causal

connection between the rejections and Peacock's subsequent




                             - 35 -
demeaning conduct. 13   Moreover, keeping in mind "workplace

realities" and "the fact that the 'chilling effect' of

particular conduct is context-dependent," a jury could

reasonably find that publicly humiliating Mihalik in front

of her male counterparts and otherwise shunning her was

likely to deter a reasonable person from opposing his

harassing behavior in the future.     See Williams, 872

N.Y.S.2d at 34; see also Albunio, 16 N.Y.3d at 476, 478

(finding no merit in defendant's argument that certain

employment actions, including being "shunned and excluded

from meetings," were not adverse as a matter of law);

Gurian, supra, at 322 (asserting that if "the cost of

opposing discrimination would be the loss of all future

social intercourse with other employees, the workplace

reality would be that some people -- indeed, many people --

would become less likely to oppose discrimination than they

otherwise would be").

13
     For similar reasons, a jury could also find that Peacock's
behavior and Mihalik's discharge were additional instances in
which she was treated less well because of her gender. Instead
of viewing Mihalik's rejections as opposing discrimination, a
jury may view them as failing to submit to Cheuvreux's
discriminatory term or condition of employment -- i.e.,
accepting the CEO's sexual advances -- which Peacock sought to
enforce by humiliating and firing her.


                             - 36 -
         The district court also granted summary judgment

on the alternative ground that Mihalik had not shown that

Cheuvreux's non-discriminatory justification for Mihalik's

discharge was pretextual.     We conclude this was error.     As

an initial matter, summary judgment is appropriate only if

the plaintiff cannot show that retaliation played any part

in the employer's decision.     See Melman, 946 N.Y.S.2d at

30-31; Furfero, 941 N.Y.S.2d at 642.     At the least, the

dispute surrounding the April 2008 meeting raises a

question of fact as to whether Cheuvreux had mixed motives

for firing Mihalik.   Because the undisputed evidence

demonstrates that her performance did not motivate Peacock

to fire her before the April 2008 meeting, a jury could

credit Mihalik's version of that meeting and find that

retaliation was a motivating factor for her discharge.

         In addition, we conclude that Mihalik has

presented sufficient evidence from which a jury could

conclude Cheuvreux's non-discriminatory rationale was

pretextual.   In response to Cheuvreux's evidence of her low

sales commissions and failure to follow up on some sales

leads, Mihalik presented evidence that:     Cheuvreux hired


                              - 37 -
her because she had pre-existing contacts with prospective

clients; Mihalik in fact signed many of those clients;

Cheuvreux set no hard sales targets for Mihalik because she

was beginning from a "standing start"; Cheuvreux knew it

could take many months for a new client to start generating

revenue; and some of the clients Mihalik signed began

producing revenue for Cheuvreux only after her dismissal.

Mihalik also presented evidence showing that she did not

exceed her allotted number of vacation and sick days, and

that Peacock had approved each of her vacation requests.

From this evidence, a jury could find that Mihalik's true

value rested on her ability to recruit large institutional

clients and Cheuvreux knew that several of them would begin

to generate income shortly.

         More importantly, while we agree that the evidence

of Mihalik's poor performance was substantial, we also

conclude that a jury could find, notwithstanding that poor

performance, that Cheuvreux was not yet ready to fire

Mihalik and that it did so only after Peacock became angry

that Mihalik raised the issue of his sexual advances.

Moreover, because Peacock had never criticized Mihalik's


                              - 38 -
performance before she rejected his propositions, a jury

could find that he used her shortcomings as an excuse to

humiliate and punish her for opposing his discriminatory

behavior.     If a jury so found, it would be free to infer

that Cheuvreux is using Mihalik's poor performance now as a

mere cover-up for retaliation.     See Bennett, 936 N.Y.S.2d

at 124.     Therefore, the district court erred in granting

summary judgment on Mihalik's retaliation claim.

                           CONCLUSION

            We conclude that the district court erred in

granting summary judgment because the record below

presented genuine disputes of material fact regarding both

Mihalik's claims under the NYCHRL.      Accordingly, the

judgment is VACATED and the case is REMANDED for trial.




                              - 39 -
