SDNY Applies “Alter Ego/Proxy” Theory in Denying Defendant’s Motion for Summary Judgment in Sexual Harassment/Hostile Work Environment Case

In Donohue v. Finkelstein Memorial Library, the Southern District of New York recently denied defendant’s motion for summary judgment on plaintiffs’ sexual harassment (hostile work environment) claims.

Generally, a plaintiff asserting a hostile work environment claim must establish two things: first, conduct rising to a sufficient level that constitutes a “hostile” or “abusive” working environment, and second, a specific basis for imputing the conduct creating the hostile work environment to the employer. Here, the court found it necessary to address only the second element.

Initially, the court reviewed the legal standards for determining whether the alleged harasser’s conduct may be attributed to the employer, which varies depending on the alleged harasser’s status (i.e., proxy/alter ego, supervisor, or non-supervisory co-worker).

It next considered, and rejected, defendant’s reliance on the so-called “Faragher/Ellerth” affirmative defense (which is named after two Supreme Court cases, Faragher v. Boca Raton and Burlington Industries v. Ellerth, from which it developed).

That defense has three elements: (1) the employer did not take a “tangible employment action” against the employee; (2) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (3) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Citing the Second Circuit’s decision in Townsend v. Benjamin Enterprises, Judge Cote held that the defense was “unavailable where, as here, the alleged harasser is an alter ego/proxy of the employer.” Specifically, the alleged harasser “was the Executive Director, a role in which he is the primary administrative officer of the Library and directly responsible to the Board of Trustees” which “is analogous to the role of a president in a corporation.”

The court, however, dismissed plaintiffs’ retaliation claims, finding (with respect to one plaintiff) that a one-year gap between the protected activity and the alleged retaliatory act was too long to establish a causal connection, and (with respect to the other) that the alleged retaliatory conduct amounted to nothing but “minor irritations”.