In Russell v. Cty. of Rockland, No. 15CV4296, 2017 WL 3189873 (S.D.N.Y. July 26, 2017), the court granted defendant’s motion for summary judgment on plaintiff’s hostile work environment sexual harassment claims under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law.
The court summarized the law:
In order to establish a hostile work environment claim under Title VII [and the NYSHRL], a plaintiff must produce enough evidence to show that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 20 (2d Cir. 2014) (internal quotation marks omitted). Although the issue of whether the alleged sexual harassment constitutes a Title VII violation is determined from the totality of the circumstances, “the incidents [of sexual harassment] must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.” Carrero v. New York City Housing Auth., 890 F.2d 569, 577–78 (2d Cir. 1989).
When the harassment is perpetrated by a co-worker rather than a supervisor, “the employer will be held liable only for its own negligence.” Distasio v. Perkin Elmer Corp., 157 F.3d 55, 63 (2d Cir. 1998). With co-worker harassment, “an employer will be liable if the plaintiff demonstrates that the employer either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it.”
Here, the court held that the employer provided a reasonable avenue of complaint, namely, an anti-discrimination and equal opportunity policy under which an individual could file a written complaint with a number of persons.
The court noted that the effectiveness of the policy was demonstrated by the fact that (e.g.) after plaintiff invoked it to complain about inappropriate sexual remarks by another Corrections Officer, “the EEO Office initiated an investigation, found [the Officer] engaged in sexual harassment, and recommended disciplinary charges” which resulted in a “substantial punishment.”
This, however, did not end the matter:
Despite offering a reasonable avenue of complaint to plaintiff, employer defendants can still be held liable if plaintiff can show that they knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action.” Duch v. Jakubek, 588 F.3d 757, 763 (2d Cir. 2009). Knowledge will be imputed to an employer when: “(A) the official is at a sufficiently high level in the company’s management hierarchy to qualify as a proxy for the company; or (B) the official is charged with a duty to act on the knowledge and stop the harassment; or (C) the official is charged with a duty to inform the company of the harassment.”
Plaintiff failed to meet this standard:
Aside from her one formal complaint and her single verbal complaint to a sergeant, Russell never raised any alleged sexual harassment with a supervisor or the EEO Office. “For non-supervisory co-workers who lack authority to counsel, investigate, suspend, or fire the accused harasser … the co-worker’s inaction does not spark employer liability unless that co-worker has an official or strong de facto duty to act as a conduit to management for complaints about work conditions.” Duch, 588 F.3d at 763 (internal quotation marks omitted). While Russell contends that she made multiple complaints of sexual harassment to her union representatives, the union and its leadership were comprised solely of other corrections officers—not supervisors—which is insufficient to impute knowledge to Rockland County. …
The fact that the Policy directs all employees to report any observed harassment does not mean that the purported failure by low-level corrections officers in their capacities as union shop stewards allows knowledge of the harassment to be imputed to Rockland County. … [E]ven if co-workers are tasked with a duty to report, the failure to report is not necessarily unreasonable, particularly where a plaintiff asks that her complaints be kept confidential. See Torres, 116 F.3d at 638–39. Here, Russell made several requests that her complaints not be forwarded up the chain of command.
Based on this, the court concluded that “because Russell failed to report her claims of sexual harassment, knowledge cannot be imputed to Rockland County and the claims must be dismissed.”