Pairing Harassment Victim With Harassers Was Unreasonable, Supporting Vicarious Liability in Police Officer’s Sexual Harassment/Hostile Work Environment Case

In Parra v. City of White Plains (decided Sept. 4, 2014), the Southern District of New York held that plaintiff plausibly alleged some, but not other, claims of discrimination.

Plaintiff, a Hispanic female police officer, alleged that defendants subjected her to a hostile work environment based on sexual harassment, retaliated against her for complaining about the harassment, and discriminated against her on the basis of her gender and race.

Among other things, plaintiff alleged:

Shortly after plaintiff was hired, Sergeant Joseph Castelli allegedly told her, “wait until you meet Lt. Johnson.” When they met, Johnson allegedly instructed plaintiff to call him “Big Daddy.” Soon, Johnson allegedly began asking plaintiff “when are you gonna sit on my face?” and “when are you gonna suck my dick?” and making “hand gestures simulating oral sex and masturbation.”

Johnson allegedly harassed other female police officers as well, although they are not identified by name in the amended complaint. When these officers complained, the Department allegedly “reassigned” them, but did not reassign or discipline Johnson. As a result, Johnson allegedly continued to harass and subject plaintiff to “unwelcome[ ] touchings and attention.”

Sergeant Howard Tribble is alleged to have behaved similarly. Plaintiff alleges that throughout 2006, Tribble “frequently made unwanted sexual comments” to her, and “frequently subjected” her to “unwanted sexual touching, grabbing, and pulling, including rubbing her hands, arms, shoulders, neck, feet, head and hair.” Plaintiff “repeatedly complained” to Tribble “that his conduct was unwelcome and unwanted, but he continued to inappropriately and illegally grab, rub, pull, and touch her, causing her extreme discomfort, embarrassment and humiliation.” When plaintiff told Tribble she planned to file a complaint about him, he allegedly “threateningly replied, ‘NO YOU WON’T.’”

Plaintiff alleges many of the incidents with Johnson and Tribble “took place in front of … superior officers” who did not intervene.

The court concluded, with minimal analysis, that “since Johnson’s and Tribble’s alleged conduct, if true, was both pervasive and severe, plaintiff has plausibly alleged a hostile work environment.” (Emphasis added.)

The court thus turned to the question of whether Johnson’s and Tribble’s alleged conduct may be imputed to the City under Title VII and the State Human Rights Law.

As to that point, the court summarized the law as follows:

[U]nder Title VII, an employer’s liability for workplace harassment may depend on the status of the harasser. If the harassing employee is a “supervisor,” the employer will be strictly liable for his unlawful conduct unless (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) … the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided. If the harassing employee is the victim’s co-worker, however, the employer is liable only if it was negligent in controlling working conditions.

Under the NYSHRL, liability for an employee’s discriminatory acts may not be imputed to an employer … unless the employer became a party to it by encouraging, condoning, or approving it.

Applying the law, the court concluded that plaintiff adequately pleaded sexual harassment claims against the City:

Even assuming Johnson and Tribble were plaintiff’s co-workers, defendants cannot establish from the pleadings alone that the Department’s response to each alleged incident of harassment was reasonable as a matter of law.

To be sure, the Department appears to have investigated a number of plaintiff’s complaints reasonably promptly. But the Court cannot deem reasonable as a matter of law the Department’s decision to assign plaintiff to Squad 8 with Tribble (against whom she had already filed a sexual harassment complaint) and Johnson (about whom several women had allegedly complained). Nor does Bradley’s rationale for assigning plaintiff to Squad 8–that Johnson’s and Tribble’s comments were “just jokes” and that “enough time had passed” for plaintiff to resume working with them—appear reasonable from the face of the pleadings.

Because plaintiff has plausibly alleged the Department may have been negligent in responding to her complaints of harassment, she has pleaded a basis to hold the City liable for Johnson’s and Tribble’s conduct under Title VII. And because plaintiff plausibly alleges Bradley condoned her assignment to Squad 8, she has also plausibly alleged the City’s liability under the NYSHRL. (Emphasis added.)

The court also held that plaintiff plausibly alleged individual liability against Johnson, Tribble, Castelli and Bradley.

The New York State Human Rights Law, unlike Title VII, provides for individual liability. The court outlined the law regarding individual liability under the NYSHRL:

[A]n employee may not be individually subject to suit as an employer under Section 296(1) of the [NYS]HRL if he [or she] is not shown to have any ownership interest or any power to do more than carry out personnel decisions made by others. Conversely, individuals may be held liable given sufficient supervisory power.

But a co-worker who lack[s] the authority to either hire or fire the plaintiff may still be held liable as an aider-abettor under NYSHRL § 296(6) if he actually participates in the conduct giving rise to a discrimination claim. In this regard, the individual defendant, who may have personally committed the discrimination, is not held liable for aiding and abetting his own actions, but instead, is deemed liable for aiding and abetting the primary violation by the employer. [A] supervisor’s failure to take adequate remedial measures” in response to a complaint of discrimination has been deemed “actual participation” under NYSHRL § 296(6).

Applying the law to the facts, the court held:

The amended complaint plausibly alleges primary liability as to Castelli and Bradley, and aider-abettor liability as to Johnson, Tribble, Castelli, and Bradley.

As to primary liability, plaintiff plausibly alleges Castelli and Bradley “recklessly disregarded [her] repeated complaints” of discrimination by reuniting her with her alleged harasser, Tribble, and then refusing to reassign her away from him without cutting her salary.

As to aider-abettor liability, Johnson’s and Tribble’s alleged harassment of plaintiff is the basis for the City’s “primary” violation of the NYSHRL. In addition, plaintiff plausibly alleges Castelli rebuked her for complaining about Tribble’s harassment and refused to transfer her to another squad without effectively demoting her. Finally, plaintiff plausibly alleges Bradley was aware Tribble had previously harassed her when he approved her assignment to Squad 8.

Thus, plaintiff has plausibly alleged Johnson, Tribble, Castelli, and Bradley aided and abetted the City’s violations of the NYSHRL.

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