Court Dismisses Sexual Harassment Claim Based on Conduct By Non-Supervisor

In Martin v. New York State et al, 17-cv-9721, 2019 WL 2053992 (S.D.N.Y. May 9, 2019), the court, inter alia, dismissed plaintiff’s sexual harassment claim based on the conduct of a non “supervisor.”

The court’s decision turned on that branch of the law providing that “[w]hen the harassment is perpetrated by a non-supervisory coworker, an employer will only be held liable for its own negligence” and that “[t]o show employer negligence, a plaintiff must demonstrate that her employer failed to provide a reasonable avenue for complaint or that it knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action.” 2019 WL 2053992 at *4.

After noting that it was undisputed that the alleged harasser (defendant Rorick) was not plaintiff’s “supervisor”, the court concluded:

The undisputed facts show that DOCCS promptly undertook an investigation into Rorick’s conduct, directed Rorick to cease and desist from any harassing behavior, and took steps to mitigate workplace harassment generally. Martin did not allege any further harassment by Rorick after the investigation was commenced. Although Martin alerted Frasier that other COs were talking about her outside of her presence, she provided no details to substantiate that complaint. Nonetheless, Frasier investigated that lead, and was unable to corroborate it. To the extent that there is a dispute as to whether Martin was subject to further harassment by other coworkers after the investigation was commenced, that dispute has little bearing on DOCCS’s liability because it was never reported to DOCCS. DOCCS could not reasonably be expected to have addressed harassment of which Martin never complained. In short, there is no evidence from which a reasonable jury could find that DOCCS acted negligently or that its remedial response was inadequate.