In Suarez v. City of New York (EDNY 11-cv-5812 March 31, 2015), the Eastern District of New York dismissed the claims by plaintiff, a deckhand on the Staten Island Ferry (and employed by the NYC Department of Transportation), that she was sexually harassed by Warren, an AlliedBarton security guard, under the NYC Human Rights Law (NYCHRL).
Addressing the “novel question of the limits on the liability of an agent under NYCHRL in cases where an agent’s employee acts in an unlawful manner towards a principal’s employee”, the court considered the scope of an agent’s liability under the NYCHRL.
Specifically, the court held that Allied was not liable for Warren’s conduct. Here is its analysis/explanation:
Here, Suarez alleges that Warren, an Allied employee, directly engaged in conduct giving rise to her claims. The question is thus, under what circumstances can Allied, as Warren’s employer, be said to have directly participated in Warren’s conduct. Although the statute is silent on the limits on an agent’s liability for the conduct of its employees, this Court looks to N.Y.C. Admin, Code § 8–107(13)(b), which governs an employer’s liability for the conduct of its employees. NYCHRL § 8–107(13)(b) “imposes liability on the employer [for its employee’s conduct] in three instances: (1) where the offending employee ‘exercised managerial or supervisory responsibility’ …; (2) where the employer knew of the offending employee’s unlawful discriminatory conduct and acquiesced in it or failed to take ‘immediate and appropriate corrective action’; and (3) where the employer ‘should have known’ of the offending employee’s unlawful discriminatory conduct yet ‘failed to exercise reasonable diligence to prevent [it].’ “ Zakrzewska v. New Sch., 14 N.Y.3d 469 (2010) (quoting N.Y.C. Admin. Code § 8–107(13)(b)). Thus, under the NYCHRL, a plaintiff’s direct employer is not strictly liable for the conduct of its non-supervisory employees.
Section 8–107(13) (b) of the NYCHRL does not expressly apply to agents, such as Allied. However, this Court holds that § 8–107(13)(b) should apply with equal force to an agent, sued in its capacity as an employer of an individual who engages in discriminatory conduct, as it would to an employer, sued in such a capacity. The Court so holds because it would make little sense to hold an agent strictly liable for the conduct of its non-supervisory employees, while a plaintiff’s direct-employer’s liability is limited to circumstances where it knew or should have known about the conduct. Thus, where a plaintiff sues an agent based on the discriminatory acts of the agent’s non-supervisory employee, the agent can only be held liable if a reasonable factfinder could conclude that it “knew [or should have known] of the offending employee’s unlawful discriminatory conduct and acquiesced in it” or “failed to exercise reasonable diligence to prevent [it].”Zakrzewska, 14 N.Y.3d at 479.
Here, there is insufficient evidence from which a reasonable trier of fact could find that Allied knew or should have known about Warren’s conduct. Suarez does not dispute that she did not complain about Warren’s conduct to either the DOT or Allied before lodging a complaint with the DOT on June 19, 2010. (Pl. R. 56.1 Stmt. ¶ 13; McArdle Dep. Tr. 17–18.) Nor does she contend that Allied should have known about Warren’s conduct before she made her complaint. The record indicates that, upon learning of Suarez’s allegations, Allied took immediate and swift action to address Suarez’s complaint by scheduling a meeting with Gordon, reviewing Allied’s harassment policies with Warren, and relocating Warren away from Suarez, (McArdle Dep. Tr. at 22:2–7; Warren Dep. Tr. 44:16–18.) While Suarez alleges that Warren continued to stare at her in a menacing way and made one derogatory comment that may have been directed towards her, Suarez’s own testimony clearly demonstrates that Warren’s sexually charged conduct ceased after Allied learned of her complaints. (Pl. R. 56.1 Stmt. ¶ 14.) Drawing all inferences in favor of Suarez, no reasonable factfinder could conclude that Allied had or should have had any knowledge of Warren’s discriminatory conduct prior to Suarez’s June 19, 2010 complaint, or that Allied’s response, upon learning of the discriminatory conduct, did not constitute appropriate corrective action.7Accordingly, Allied cannot be held liable under the NYCHRL for Warren’s conduct and its motion for summary judgment is granted.Suarez v City of New York