In Deberry v. Brookdale Univ. Hosp. & Med. Ctr., No. 12-CV-6251(SLT)(RLM), 2016 WL 3840673 (E.D.N.Y. July 12, 2016), the court dismissed plaintiff’s discrimination, harassment, and hostile work environment claims.
Here I’ll focus on its discussion of plaintiff’s hostile work environment claim. This case is instructive on the issue of when the alleged harassment may be imputed to the employer (i.e., make the employer itself liable for the alleged wrongdoing).
The law:
In order to prevail on a hostile work environment claim, a plaintiff must make two showings: (1) that “the harassment was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment” and (2) that there is a “specific basis for imputing the conduct creating the hostile work environment to the employer.” Feingold v. New York, 366 F.3d 138, 149-50 (2d Cir. 2004) (internal quotation marks omitted). Establishing the second prong depends on who does the harassing and, “[i]n a situation such as this, ‘when the harassment is attributable to a coworker, rather than a supervisor … the employer will be held liable only for its own negligence.’ ” Duch v. Jakubek, 588 F.3d 757, 762 (2d Cir. 2009) (quoting Distasio v. Perkin Elmer Corp., 157 F.3d 55, 63 (2d Cir. 1998)); see also Vance v. Ball State Univ., 133 S. Ct. 2434, 2441 (2013) (“an employer is directly liable for an employee’s unlawful harassment if the employer was negligent with respect to the offensive behavior.”) A plaintiff therefore bears the burden to prove her employer’s negligence by showing either (i) that it “failed to provide a reasonable avenue for complaint,” or (ii) that “it knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action.”
After assuming, without deciding, that plaintiff raised an issue of fact as to the first element, she failed to do so with respect to the second element. Among other things, “while she complained of [her co-worker’s] boorish conduct, she never once mentioned race or national origin. In these circumstances, no reasonable juror could find that Brookdale failed to provide a reasonable avenue for complaint.”