Complaining of Harassment Only to Harasser Provides Employer With Defense to Harassment Claim Under NY State Discrimination Law

In Rubin v. Abbott Labs., No. 13 CIV. 8667 CM, 2015 WL 5679644 (S.D.N.Y. Sept. 23, 2015), the court granted defendant’s motion for summary judgment on plaintiff’s hostile work environment claim under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law, but denied it as to her claim of hostile work environment under the New York City Human Rights Law.

Plaintiff alleged “that her supervisor, Kohler, created a hostile work environment by making comments to her that she interpreted as sexist and intimidating, and by causing her to feel physically threatened on at least one and possibly as many as three occasions.”

After determining that plaintiff’s federal (Title VII) claim was time-barred, the court turned to plaintiff’s claims under the State and City Human Rights Laws.

As to plaintiff’s State Human Rights Law claim, the court initially held that plaintiff presented enough evidence that the alleged harassment was sufficiently “pervasive” and related to her gender to overcome summary judgment.

The court explained:

Based on Plaintiff’s testimony, which is the only evidence offered in support of her claim, it is a close call as to whether Kohler’s conduct was actual pervasive discrimination or simply violations of the “general civility code.” Oncale, 523 U.S. at 80. Plaintiff testified that Kohler-her direct supervisor-repeatedly, even daily, used curt and intimidating tones with her, and frequently made statements such as “are you stupid,” “you are going to have a bad day,” “you are acting girlie,” “girls are emotional,” and “you are emotional.” Some of what Plaintiff complains of appears to be nothing more than uncivil conduct (using a curt tone of voice, for example, or telling Plaintiff that she is stupid). Some of it appears to have overtones of sexism (“girls are emotional”), but the record is at best unclear as to how frequently such remarks were made. Furthermore, it is not clear whether the allegedly discriminatory conduct was due to Plaintiff’s gender; Kohler was apparently an “equal opportunity” yeller, who was known to be curt and aggressive toward all MPS’s, male and female. …

[F]acially gender neutral statements can be included in a hostile work environment claim as long as there is some circumstantial basis for inferring that the facially neutral statements were actually based on Plaintiff’s gender. Here it seems that Plaintiff has provided some circumstantial basis for inferring the facially neutral actions occurred because of her gender: in her almost four years with Defendant she observed Kohler regularly treating women more harshly than their men counterparts, and on various car rides she took with Kohler he frequently made comments such as “Jay Downing has her job because she is a black woman.” “So long as there is some evidentiary basis for inferring that facially sex-neutral incidents were motivated by the plaintiff’s gender, the ultimate question of whether such abuse was “because of” the plaintiff’s gender, 42 U.S .C. § 2000e–2(a)(1), is a question of fact for the factfinder.”

Plaintiff’s claim failed, however, because she was unable to “show a specific basis for imputing any of Kohler’s objectionable conduct to the Defendant.” The court explained:

It is undisputed that at all relevant times Defendant had in place a Workplace Harassment Policy. … [T]he policy stated an employee is to bring concerns about potential harassment to either a supervisor, Employee Relations or the Office of Ethics and Compliance. Prior to her resignation, Plaintiff never complained to Defendant’s ER Department or to the Office of Ethics that Kohler discriminated against her based on her gender or that he otherwise treated her unfairly. The only person to whom she complained was Kohler himself-the alleged harasser. Furthermore, the record contains no evidence that anyone in a position of authority at Abbott was aware of Kohler’s behavior and ignored it. Accordingly, Plaintiff cannot prove that Defendant was aware of the harassment and did nothing about it, as is required in order to prevail on a NYSHRL claim for hostile work environment. … [T]here is no way to impute the discriminatory employee’s behavior to the employer if the employee fails to report the discriminatory behavior to her employer and there is no evidence that the employer knew of offending behavior and ignored it.

Plaintiff cannot save her hostile work environment claim by noting that she complained to Kohler, her alleged harasser, about Kohler’s own behavior. A corporate policy against sexual harassment in the workplace protects the company as well as the employee; it gives the employee an avenue to obtain redress against a harassing co-worker or supervisor, but it also is designed to alert the company to potential misbehavior for which it could be held liable in a lawsuit like this one. By mentioning her belief that she was being harassed only to her harasser-who could hardly be counted on to turn himself in to Employee Relations or the Office of Ethics (and who probably did not think her complaint was warranted)-Plaintiff failed to avail herself of the very remedy the corporation devised for her benefit and for its own. That gives Abbott an ironclad defense under the State Human Rights Law.

The court reached a different conclusion, however, with respect to plaintiff’s New York City Human Rights Law claim.

[U]nder the NYCHRL, an employer is liable for the discriminatory acts of an employee where the employee or agent exercised managerial or supervisory responsibility. N.Y.C. Admin. Code § 8–107(13)(b). With the NYCHRL claim, unlike with the NYSHRL claim, Defendant does not have available to it the affirmative defense that it provided a reasonable avenue for the complaint of harassment and that Plaintiff did not avail herself to it. With this claim, Defendant is liable for the discriminatory acts of Kohler because Kohler exercised managerial and supervisory authority in his position as MPS Sales Manager.

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