Sexual Harassment, Retaliation Claims Properly Dismissed Against NYC Dept. of Education

In Douyon v. NYC Dept. of Education, No. 15-3932, 2016 WL 6584894 (2d Cir. Nov. 7, 2016) (Summary Order), the court affirmed the dismissal of plaintiff’s claims of hostile work environment sexual harassment, quid pro quo sexual harassment, and retaliation. In sum, plaintiff asserted that her supervisor, Laurence Harvey, subjected her to sexual harassment and that she was fired for reporting it.

As to plaintiff’s hostile work environment claim, the court summarized the law, including the so-called Faragher/Ellerth affirmative defense:

[T]o succeed on such a claim a plaintiff must show discriminatory conduct … sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment. Employers, however, can avail themselves of the Faragher/Ellerth affirmative defense. To establish such a defense, an employer must show that (1) it “exercised reasonable care to prevent and correct promptly any [discriminatory] harassing behavior,” and (2) “the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Faragher, 524 U.S. at 807. An employer must also show either that the employee’s supervisor took no “tangible employment action,” or that any tangible employment action taken against the employee was not part of the supervisor’s discriminatory harassment.

Applying the law, the court concluded:

[T]he district court properly determined that Douyon failed to show that her termination was part of Harvey’s alleged harassment. In addition, no material issue of fact exists as to whether (1) DOE exercised reasonable care and (2) Douyon unreasonably failed to take advantage of any preventive or corrective opportunities. DOE provided evidence of its anti-harassment policy and procedures, which Douyon did not dispute. … Indeed, Douyon herself admitted that she failed to take advantage of these procedures. Douyon stated that she feared retaliation, but a credible fear [of retaliation] must be based on more than the employee’s subjective belief. Douyon produced no evidence to support her fear, such as that the DOE had previously ignored or resisted similar complaints.

In finding that the district court properly dismissed plaintiff’s “quid pro quo” sexual harassment claim, the court explained:

Finally, Douyon argues that pursuant to a “quid pro quo” theory of liability, she adduced sufficient evidence to reach a jury as to her claim that she was denied an economic benefit because she rejected Harvey’s alleged advances. … [I]t is meritless. [I]t is clear that Douyon was fired because she failed to secure a new position before the ISCs closed, not because she refused Harvey’s advances. Moreover, Douyon provided no support for her contention that a delay of four business days (from June 18 to June 24) in signing the FMLA leave form is a cognizable economic benefit under Title VII, and that contention is seriously called into doubt by the fact that employers are allowed five business days to notify applicants that they are eligible for FMLA leave. Accordingly, Douyon’s quid pro quo argument fails.

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