Court Dismisses Sexual Harassment Claims Based on Conduct of Non-Supervisory Co-Worker

In Felmine v. Service Star, No. 13-cv-2641, 2016 WL 4005763 (E.D.N.Y. July 25, 2016), the court granted defendants’ summary judgment motion and dismissed plaintiff’s claims for (1) quid pro quo sexual harassment, (2) hostile work environment, (3) retaliation, and (4) disability discrimination.

Plaintiff – a cargo handling agent – alleged that defendant “subjected him to sexual harassment, retaliated against him for reporting the harassment to his supervisors, and discriminated against him because of a disability.”

His sexual harassment claims were based on his allegedly being sexually assaulted by a Lufthansa Lead Agent, Tony Permaul.

Sexual harassment – Quid Pro Quo

As to plaintiff’s claim of quid pro quo sexual harassment, the court explained:

To set out a prima facie claim of quid pro quo sexual harassment, Felmine must present evidence that [he] was subject to unwelcome sexual conduct, and that [his] reaction to that conduct was then used as the basis for decisions affecting the compensation, terms, conditions or privileges of [his] employment. But an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. The determination of whether the harasser was empowered to take tangible employment actions “can very often be resolved as a matter of law before trial. Service Star argues that Permaul was not so empowered.

Applying the law, the court explained:

As a Lead Agent, Permaul’s responsibilities included coordinating truck movement, weighing and screening freight and placing it in a designated location, overseeing loading work, and providing routine oversight and general directions to Service Star agents that worked in the same area of the warehouse. He had no authority to hire, fire, evaluate, or discipline Service Star employees, or determine their compensation. Accordingly, he was not empowered to take tangible employment actions, and Felmine cannot sustain a claim of quid pro quo sexual harassment against Service Star. … Felmine argues nonetheless that Permaul made threats to fire him, despite not having authority to do so. But such threats are irrelevant to Service Star’s liability for Permaul’s conduct, because Service Star did not empower Permaul to effectuate any threat he may have made. Accordingly, Felmine cannot maintain a claim for quid pro quo sexual harassment. (Emphasis added.)

Sexual Harassment – Hostile Work Environment

The court also dismissed plaintiff’s hostile work environment claim.

The law, summarized:

When the harassment is perpetuated by a non-supervisory co-worker, as in the present case, an employer will be held liable only for its own negligence, and the plaintiff must demonstrate that the 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.

Here, defendant provided “a reasonable avenue to complain and took appropriate remedial action.” Specifically:

After the second assault—which occurred only three days after the first assault—Felmine reported the conduct to Conroy, who immediately contacted Permaul’s Lufthansa supervisor and arranged for Felmine and Permaul to be assigned to different areas of the warehouse. When Felmine reported the assaults to Baker, she and Conroy opened an investigation into Permaul’s conduct which resulted in Permaul’s demotion and censure. Over the remaining eight months of Felmine’s employment at Service Star, Permaul’s assaultive behavior did not continue. This demonstrates not only that Service Star provided a reasonable avenue for Felmine to complain … but also that it promptly took appropriate action that effectively addressed the problem.

Disability Discrimination

Finally, the court dismissed plaintiff’s disability discrimination claim – based on his knee injury – under the Americans with Disabilities Act. That statute requires, among other things, teh presence of a “physical or mental impairment that substantially limits one or more of the major life activities of such individual.” Plaintiff failed to make that showing here:

Although Felmine complained of pain and submitted a doctor’s note indicating that he should rest his knee for at least ten days, he does not identify a major life activity that he could not perform. He does not point to any evidence indicating his knee injury limited him from engaging in any major life activities, or that Service Star perceived him as being so limited. Moreover, the fact that Felmine was instructed by his doctor to rest his knee for ten days does not mean that he has a disability resulting in coverage under the ADA.

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