Labor & Employment Law Daily Wrap Up, DISCRIMINATION—SEXUAL HARASSMENT—N.D.N.Y.: Sam’s Club not liable for harassment despite manager’s call to employee’s abuse shelter, (Aug 12, 2026)

By Kathleen Kapusta, J.D.

The Sam’s Club optician assistant claimed her manager repeatedly made sexually degrading comments to her, spread rumors about her having an abortion, and contacted a domestic violence shelter she frequented.

Although an optician assistant at a Sam’s Club store in New York sufficiently established that she was subjected to sex-based conduct by her managers that was severe and pervasive, including one manager contacting a domestic abuse shelter she frequented, her employer established the Faragher/Ellerth affirmative defense, a federal district court in New York concluded, noting that it promptly investigated her complaints, terminated one of the managers, and found other complaints unsubstantiated. Accordingly, the court granted summary judgment against her Title VII and NYSHRL claims. Her retaliation claim also failed on summary judgment (Ross v. Sam’s East Inc. dba Sam’s Club #6440, No. 1:24-cv-00492 (AMN/PJE) (N.D.N.Y. Aug. 11, 2026)).

During her year and a half tenure at Sam’s Club, the employee, an optician assistant, completed part of her New York licensing requirements for an optician. She initially worked every weekday except Wednesday and when asked by her manager about her unavailability on that day, she told him she attended weekly counseling sessions at a domestic abuse shelter. Around that same time, she informed him that she needed a few days off to undergo a medical procedure for ectopic pregnancy.

Comments. According to the employee, her manager repeatedly made sexually degrading comments to her and others, including telling other male managers she wanted to have sexual relations with them, telling her that she “should take him into the back room so they could both have a better day,” spreading rumors that she had an “Only Fans” account, and making gestures to her as though she were a stripper.

About three months into her tenure, a front-end supervisor told her the manager was telling people she had an abortion and was in an abusive relationship. That same day, she reported the manager’s conduct to the district manager and then to the club manager the following morning. Not long after that, she claimed she saw her manager researching women’s shelters in the area. She immediately reported this to the club manager and another manager, who confirmed the matter was under investigation and sent her home for the day.

Abuse shelter contact. When the employee came to work the next day, she noticed that her manager’s computer was open to a search page listing domestic violence shelters. After reviewing the office phone log, she discovered that he had called a domestic violence shelter she frequented. She purportedly contacted the shelter and was told he had suggested kicking her out of the program.

Ethics complaint. She then filed an ethics complaint alleging her manager was spreading a rumor that she had an abortion and had called a domestic violence shelter she frequented. She took medical leave and while she was out, Sam’s fired her manager and hired a new manager to replace him.

New manager. On her first day back to work, the new manager mentioned that she had heard the employee had been sleeping with her former manager and had an abortion and told the employee “if [she] ever [needed] another abortion, [to] just give [her] the baby.” The new manager also sent her a GIF in a text message depicting shirtless men in their underwear and later told her not to “f**k an incoming manager.

Second complaint. The employee then asked the district and club managers to investigate and filed another ethics complaint, alleging, among other things, that her hours had been cut. Less than two weeks later, she quit. The investigator subsequently found her allegations could not be substantiated and her hours were reduced due to her lack of licensing.

Hostile work environment. Moving for summary judgment on the employee’s Title VII and NYSHRL hostile work environment claims, Sam’s argued that the managers’ conduct was not sex-based. Disagreeing, the court found some of the conduct was sex-based on its face, including the first manager telling other male managers the employee wanted to have sex with them, suggesting she have sex with him by “tak[ing] him into the back room so they could both have a better day,” spreading rumors that she had an “Only Fans” account, and making gestures to her as though she were a stripper.

The court also found it reasonable to infer that the second manager telling the employee not to “f**k” the incoming manger and sending her the GIF depicting shirtless men in their underwear was sex-based conduct. As to the abortion rumor and the manager’s “offer” to take the employee’s baby should she “need another abortion,” pregnancy discrimination constitutes discrimination on the basis of sex under both Title and the NYSHRL, the court observed.

Regarding the manager’s researching domestic violence shelters and contacting a shelter the employee frequented, the court, noting he had previously spread the rumor about the employee having an abortion and then began researching domestic violence shelters the day after she confronted him, found a reasonable juror could infer this was also sex-based conduct.

Severe/pervasive. The court next found that while the majority of the managers’ conduct was insufficient, standing alone, to permit a reasonable factfinder to conclude the employee’s working environment was objectively hostile, a reasonable juror could find that contacting a domestic violence shelter she frequented and suggesting that she be dismissed from the program was objectively severe. Even though it only occurred once, it could be viewed as objectively intimidating, threatening, and likely to cause the employee psychological harm and thus a reasonable juror could find it was sufficiently severe to create a hostile work environment.

Employer liability. The court, nonetheless, granted summary judgment against her claims, finding the employee failed to show a basis for imputing liability to Sam’s. The parties did not dispute that Sam’s maintained policies prohibiting discriminatory harassment on the basis of sex, that both managers signed the company’s Global Discrimination & Harassment Prevention Policy prohibiting any form of harassment based on an individual’s protected status, and that its New York state policy encourages individuals to report sexually harassing conduct to a salaried member of management or to Ethics. Sam’s also maintains procedures enabling employees to file complaints with its Global Ethics & Compliance Office, including confidential and anonymous complaints.

Indeed, the court observed, in accordance with these policies, after the employee filed an initial ethics complaint in March 2022 regarding her first manager’s conduct, Sam’s promptly investigated and terminated the manager less a month later. The employee also filed an ethics complaint against the second manager in April 2023, which the company promptly investigated and which was concluded in May.

Noting that the employee voluntarily resigned prior to the completion of the investigation, the court found she failed to avail herself of the company’s internal complaint procedures. Because there was no evidence this failure was reasonable, the court found Sam’s established the Faragher/Ellerth affirmative defense to a Title VII hostile work environment claim.

NYSHRL claim. Nor was there any basis to impute the managers’ conduct to Sam’s under the NYSHRL. Under that law, the court observed, “an employer cannot be held liable for an employee’s discriminatory act unless the employer became a party to it by encouraging, condoning, or approving it” and “a good-faith response to address misconduct precludes a conclusion that an employer has condoned misbehavior even if reasonable people could find that response insufficient.”

And here, said the court, there was no dispute Sam’s took swift action in response to the employee’s ethics complaints. Although the investigation into the second complaint found her allegations were unsubstantiated, there was no evidence suggesting the investigation was conducted in bad faith. Further, the investigation found that all of her schedule changes had a legitimate explanation as there was documentation of conversations with her indicating that her hours would be reduced due to her lack of license. Based on all this, the court granted summary judgment against her Title VII and NYSHRL hostile work environment claims.

Retaliation. Turning to the employee’s claim her work hours were reduced in retaliation for confronting the second manager about telling her not to “f**k” a new manager, the court found evidence indicating she experienced a reduction in hours approximately two months prior to her complaint as well as evidence indicating she worked more hours in the weeks following her complaint than she did in the weeks prior to her complaint. Thus, a reasonable juror could not find her hours were reduced as a result of her complaint.

Even assuming she could establish a prima facie case, Sam’s proffered a legitimate, nonretaliatory reason for reducing her hours—her failure to obtain the appropriate state licensing—and she failed to produce any evidence of pretext. Accordingly, the court granted summary judgment against this claim as well.

The case is No. 1:24-cv-00492 (AMN/PJE).

Judge: Nardacci, A.

Attorneys: John C. Luke, Jr. (Abrams Fensterman) for Ashley Ross. Lawrence D. Peikes (Wiggin and Dana) for Sam’s East, Inc.

Companies: Sam’s East, Incorporated; Sam’s Club #6440

Cases: SexualHarassment SexDiscrimination Discrimination Retaliation StateLawClaims NewYorkNews GCNNews