In Green v. Rochdale Village Social Services, Inc., No. 15 CIV. 5824 (BMC), 2016 WL 4148322 (E.D.N.Y. Aug. 4, 2016), the court granted in part and denied in part defendants’ motion for summary judgment.
Plaintiff – a van driver employed by a senior center – asserted that she was subjected to sexual harassment by a non-employee client of the center, and that defendants ignored her complaints about this harassment.
Broadly speaking, this case teaches/illustrates that an employer’s contentions that an employee performed poorly does not absolve it of its obligation to provide a harassment-free workplace.
As aptly stated by Eastern District Judge Brian Cogan:
Close personal relationships in the workplace are often breeding grounds for employment discrimination suits. The risk of suit is particularly high when the employer is a social-service agency and one of its employees, the future plaintiff, establishes such a relationship with one of the agency’s clients who the employee needs to serve. Add to the mix a terrible history of unrelated workplace infractions by the employee, for which, at least as to some, the employee inevitably has her own side of the story, valid or not, and the employee may well perceive the consequences of the litany of reported infractions to be the result of the client’s conduct, and her employer’s inadequate response.
This is not to say that an employee cannot be the victim of the client’s improper conduct and her employer’s improper response to it. In the present case, plaintiff has established issues of material fact as to whether she was subjected to repeated sexual harassment and whether defendants ignored her complaints about this harassment. However, a reasonable jury could not conclude that her employer reduced her hours for any reason other than her abjectly poor performance.
The court explained its decision to deny defendants’ motion for summary judgment as to plaintiff’s hostile work environment claims:
Plaintiff’s hostile work environment claim is weak and I have some skepticism that she can prevail before a jury on it. She has presented little evidence of a hostile work environment beyond her self-serving testimony that Mack harassed her on a daily basis and Shivers ignored her complaints about his actions. She testified that Mack tried to touch her inappropriately almost every day, made repeated sexual advances to her, and on two occasions he even showed her his penis while she was driving the van, but she was not able to identify a single witness to even one of these events. The only evidence beyond her own description is Shivers’ admission that Mack acknowledged making an inappropriate comment about her breasts, but even as to that, there is no dispute that he apologized for it when Shivers confronted him.
Nevertheless, the Court finds that, taking all of the evidence in the most favorable light for plaintiff, there is a triable issue of fact as to whether a hostile work environment existed at Rochdale. Under the totality of the circumstances, there are disputed issues of fact about whether plaintiff was subjected to a hostile work environment. If a jury were to credit plaintiff’s allegations at their most extreme, it is possible it could find that Mack’s behavior was driven by her gender and her conditions of employment were negatively impacted by his behavior.
For the same reason, it seems that there is an issue of fact as to whether defendants’ response to plaintiff’s complaints about Mack’s harassment was “effectively remedial and prompt.” If a jury credits plaintiff’s allegations that she made numerous complaints about Mack’s behavior, then Shivers’ decision to only hold one meeting to discuss these claims may not be sufficient and Mack’s conduct could be imputed to defendants. On the other hand, a jury may very well find plaintiff’s testimony about the number of complaints she made not credible and defendants would not be held liable for Mack’s conduct.
Finally, the same considerations lead me to find that defendants’ invocation of the Faragher/Ellerth defense does not provide a basis for summary judgment. The Faragher/Ellerth defense consists of two elements: that (1) the employer exercised reasonable care to prevent and correct promptly any discriminatory harassing behavior, and (2) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Because I have already found that there are triable issues of fact with regard to defendants’ response to plaintiff’s complaints, this defense – while still available at trial – does not preclude summary judgment.
The court, however, granted defendants’ motion for summary judgment on plaintiff’s gender discrimination and retaliation claims.
For example, as to discrimination, the court held that “[a] reasonable jury could not conclude that the reduction in plaintiff’s hours was motivated by anything other than her employer finally getting fed up with her poor performance.”