Sexual Harassment Hostile Work Environment Claims Survive Summary Judgment in Light of Fact Issue as to Whether Alleged Harasser Was Plaintiff’s “Supervisor” or “Co-Worker”

In Wiesen v. Guaranteed Home Mortgage, Inc., No. 14-CV-6649, 2017 WL 131741 (W.D.N.Y. Jan. 13, 2017), the court denied defendant’s motion for summary judgment on plaintiff’s sexual harassment claims under Title VII.

Plaintiff asserted that her alleged harasser (Schwaber) was in a supervisory position with respect to her as branch manager; defendant countered that Schwaber was a sales manager at another branch. This difference mattered: “If Schwaber was a colleague on the same level as Wiesen, then the only way GHMC would be liable for any alleged sexual harassment by him would be if Wiesen com-plained to GHMC and GHMC took no action.”

The law provides:

Where an employee is the victim of sexual harassment, including harassment in the form of a hostile work environment, by non-supervisory co-workers, an employer’s vicarious liability depends on the plaintiff showing that the employer knew (or reasonably should have known) about the har-assment but failed to take appropriate remedial action. See Faragher v. City of Boca Raton, 524 U.S. at 789; accord Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 72 (2d Cir. 2000). Where the harassment is attributed to a supervisor with immediate or successively higher authority over the employee, a court looks first to whether the supervisor’s behavior “culminate[d] in a tangible employment action” against the employee, Bur-lington Indus., Inc. v. Ellerth, 524 U.S. at 765, 118 S.Ct. 2257; if it did, “the employer will, ipso facto, be vicariously liable,” Mack v. Otis Elevator Co., 326 F.3d at 124. In the absence of such tangible action, an employer will still be liable for a hostile work environment created by its supervisors un-less it successfully establishes as an affirmative defense that (a) it “exer-cised reasonable care to prevent and correct promptly any sexually har-assing behavior,” and (b) “the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”

The court held that plaintiff presented sufficient evidence to overcome summary judgment. It summarized that evidence as follows:

Wiesen’s complaint alleges that GHMC failed “to take proper remedial action when it learned of other incidents of this nature prior to the incidents involving the Plaintiff,” and failed to “take proper precautions with respect to its[ ] employees/agents with known histories of sexual harassment or other improper behavior, and to protect other employees, including the Plaintiff, from the same….” In an affidavit, Weisen states that Schwaber was brought in to manage the Rochester branch and was her supervisor beginning in October 2012. She claims she spoke with the owner of GHMC, David Wind (“Wind”), by phone and expressed her “concern about the repeated change in managers for the branch.” She alleges details of her encounters with Schweiber in October 2012, including sexual overtures Schweiber made to her when she gave him a ride to his hotel in Rochester. She includes copies of what she states are text messages and Facebook® messages Schweiber sent to her that were sexually harassing. She also explained why she did not raise the issue to the owner of GHMC: “I was at a loss over what to do. I did not want to complain and lose my job or be demoted. I also know that Schwaber was the best friend of the owner of Defendant GHMC, David Wind.” She also asserts that Schwaber sent indiscrete images of himself to her and encouraged her to reciprocate. Weisen recounted that Schwaber told her that the company’s IT department would be wiping his computer clean to remove all the explicit messages to her, and that Schwaber “ ‘did it all the time.’” In addition to her own affidavit, Weisen’s re-sponse contains a affidavits from fellow employees Joe Petralla and Rebecca L. Miller. Both confirm that Schwaber was the Rochester branch manager in October 2012, and that Weisen confided in him about the sexually explicit messages Schwaber sent to her.

In April 2013, Weisen states she informed Wind and the company’s chief financial officer, Joe Cilento (“Cilento”) about Schwaber’s sexual harassment. At the time, Weisen was branch manager, and shortly after her complaint, Cilento arrived at the Rochester branch on May 2, 2013, and announced he was the branch manager now and Weisen was no longer in that position. In late May 2013, Weisen sent an email message to Wind, Cilento and Marie Gannon (“Gannon”), GHMC’s human re-sources manager, “expressing [her] displeasure with the demotion and questioning why it had occurred after [she] had just told Wind about the sexual harassment with Schwa-ber.” Weisen states she never received a response.

It concluded:

Weisen’s affidavit raises a question of fact about whether Schwaber was a supervisor, or a peer. If the former, then liability can be implicated to the company. If the latter, then Schwaber has alleged sufficient facts to show that she availed herself of the reporting provisions in the company handbook for sexual harassment and received no response. Further, she has alleged sufficient facts to show retaliation by GMHC for having engaged in a protected act: reporting the sexual harassment by Schwaber.

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