Samantha Smith, a white woman married to a Black man, was hired by Dolgen New York, LLC — which operates Dollar General stores — as a Store Manager Candidate at a Johnston, New York location on October 5, 2022. According to Smith's account, as credited by the court for purposes of summary judgment, her direct supervisor, Store Manager Joshua Southworth, began making sexually charged comments in January 2023, asking her on dates, telling her he was not happy at home and that he wanted a friends-with-benefits arrangement, following her around the store, purposely brushing up against her when she bent over, and, according to plaintiff, rubbing his penis across her buttocks. After Smith brought her children to the store, Southworth allegedly expressed surprise that her children were biracial and thereafter made repeated derogatory comments about Black men, including that they were dirty. Smith complained to her District Manager, submitted a written complaint through the company's portal, and contacted a Regional Manager — but said the resulting investigation was inadequate and that the Final Counseling issued to Southworth was unrelated to her specific complaints.
Judge David N. Hurd of the Northern District of New York granted summary judgment to Dollar General on Smith's federal Section 1981 claims and her state-law disparate treatment, retaliation, and whistleblower claims, but denied it on her New York State Human Rights Law hostile work environment claim.
The surviving claim turns on the NYSHRL's 2019 amendment, which replaced Title VII's demanding severe or pervasive standard with a more plaintiff-friendly one requiring only that a plaintiff show she was subjected to inferior terms, conditions, or privileges of employment because of a protected characteristic. Most trial courts, the opinion notes, apply the standard drawn from the New York City Human Rights Law to post-amendment NYSHRL claims — under which a plaintiff need only show she was treated less well because of discriminatory intent.
Dollar General argued it was entitled to summary judgment anyway under the Faragher/Ellerth affirmative defense, contending it exercised reasonable care to prevent and correct harassment and that Smith unreasonably failed to use its corrective procedures. Judge Hurd rejected that argument. On Smith's version of events, the company initially failed to take her complaints seriously, indicated she should continue working with Southworth, and conducted a haphazard investigation that failed to apply its zero-tolerance policy — even though at least one other employee corroborated her account. Those disputes, the court held, preclude summary judgment on the affirmative defense.
The opinion flags two unsettled questions of state law that led Judge Hurd to signal he may decline to exercise supplemental jurisdiction over the remaining claim. First, the precise legal standard governing post-amendment NYSHRL hostile work environment claims is not yet settled. Second, it is an open question whether the Faragher/Ellerth defense — historically applied to NYSHRL claims — survives the 2019 amendment. The court ordered the parties to file status reports within fourteen days addressing whether federal jurisdiction remains and whether the case should be sent to state court, which the opinion described as better suited to resolving those novel state-law questions.
The court also noted a potential diversity jurisdiction issue: defendant is an LLC whose membership was never disclosed despite a direct question in the Rule 16 disclosures, leaving the citizenship analysis incomplete.