Hostile Work Environment Claim, Arising From Conduct of Non-Supervisor Co-Worker, Survives Summary Judgment

In Kenney v. State of New York, Office of Children and Family Services, 16-cv-4522, 2017 WL 5633166 (S.D.N.Y. Nov. 20, 2017), the court granted in part and denied in part defendants’ motion for summary judgment on plaintiff’s sexual harassment claims.

In sum, plaintiff asserted claims of “hostile work environment” and “quid pro quo” sexual harassment based on the conduct of a co-worker (Davis). Here I will focus on plaintiff’s “hostile work environment” claim.[1]I discuss the court’s evaluation of plaintiff’s “quid pro quo” sexual harassment claim here.

The court held that there was sufficient evidence that Davis (i) created a hostile work environment, and (ii) the entity/employer could be liable for his conduct.

Hostile Work Environment

As to the first point, the court held that a reasonable jury could find that Davis’ conduct toward plaintiff amounted to a hostile work environment.

Notably, the court highlighted the following conduct by Davis, as alleged by plaintiff:

  • Davis told her “he liked [her] … because [she] reminded him of a stripper and that [she] had the goods … the top, and the bottom.” (Kenney Dep. at 95-96).
  • He asked plaintiff “to stand up so that he could wand [her] with the metal detector.” (Id. at 96).
  • He took plaintiff to a room in the basement of Red Hook, during what Davis told plaintiff would be a “brief tour of the facility,” and although he “did not physically touch” plaintiff, he did “com[e] very close,” and told plaintiff “there were no cameras” in the room. (Id.)
  • He asked plaintiff if she thought about him over the weekend, and told her “several times that [she] was going to get him in trouble.” (Id. at 97).
  • He “would not stop coming to [her] office” and “[h]e would hang out there all day.” (Id.).
  • He “mad[e] a lot of … sexual, inappropriate terms and express[ed] himself inappropriately toward”plaintiff. (Id.).
  • He told plaintiff she was “beautiful,” “his type,” that he felt “a connection” with plaintiff, and that she was “the kind of woman he would want to introduce to his mom.” (Id. at 112).
  • He gave her his cell phone number unsolicited. (Barkan Decl. Ex. J at 4).

Here is the legal standard, as summarized by the court:

[T]o establish a hostile work environment claim under Title VII, 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). The standard has objective and subjective elements: “the conduct complained of must be severe or pervasive enough that a reasonable person would find it hostile or abusive, and the victim must subjectively perceive the work environment to be abusive.” Raspardo v. Carlone, 770 F.3d 97, 114 (2d Cir. 2014). “Whether a reasonable person would find a given work environment to be hostile depends on the totality of the circumstances; ‘[c]onsiderations include: (1) the frequency of the conduct, (2) the severity of the conduct, (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance, and (4) whether the conduct unreasonably interferes with the employee’s work performance.’ ”

Applying the law, the court held:

[P]laintiff testified Davis repeatedly and frequently said sexually harassing things to plaintiff and acted inappropriately toward her the majority of the time she worked with him. She describes multiple specific interactions that a reasonable jury could find objectively hostile, and she testified that she subjectively felt “extremely uncomfortable” at work. (Kenney Dep. at 97).
Defendants argue plaintiff’s allegations are insufficient to constitute a hostile work environment because they consist of only “a handful of suggestive remarks and three ambiguous incidents occurring over the course of a matter of days.” (Defs.’ Br. at 15). The Court disagrees—a reasonable jury could easily conclude Davis’s behavior toward plaintiff was persistent, pervasive, and created an abusive working environment for plaintiff. [Paragraphing altered.]

Therefore, summary judgment was not warranted on the issue of whether Davis created a hostile work environment.

Imputing Liability

The court next turned to the issue of whether the entity employer could be held liable for Davis’ conduct. It held that it could.

It outlined the legal standard for imputing liability to an entity employer:

The Supreme Court has ruled that employers are not automatically liable for sexual harassment perpetrated by their employees.” Petrosino v. Bell Atl., 385 F.3d 210, 225 (2d Cir. 2004) (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998)). Instead, “[u]nder Title VII, an employer’s liability for such harassment may depend on the status of the harasser.” Vance v. Ball State Univ., 133 S. Ct. 2434, 2439 (2013).

“If the harassing employee is the victim’s co-worker, the employer is liable only if it was negligent in controlling working conditions.” Vance v. Ball State Univ., 133 S. Ct. at 2439 (emphasis added). “In cases in which the harasser is a ‘supervisor,’ however, different rules apply.” Id. (Emphasis added). Specifically, “if the supervisor’s harassment culminates in a tangible employment action, the employer is strictly liable.” Id. However, “if no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided.”

It agreed with defendant that Davis was not plaintiff’s “supervisor”. Here is the rule:

An employee is considered a “supervisor” “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.’ ” Vance v. Ball State Univ., 133 S. Ct. 2434, 2443 (2013) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. at 761). In other words, a supervisor is an individual “ ‘empowered by the company as a distinct class of agent to make economic decisions affecting other employees under his or her control.’ ” Id. at 2448 (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. at 762) (emphasis omitted). “[T]he question of supervisor status, when contested, can very often be resolved as a matter of law before trial.

Applying the law, the court held that Davis did not meet this standard. IT found, inter alia, that plaintiff “offered no evidence Davis could discipline her in any tangible way”, notwithstanding his ability to “write up” or recommend discipline against her.

As such, the court turned to the issue of whether “OCFS was negligent in controlling working conditions.” It held that plaintiff did so.

The court explained that “[a] plaintiff may show an employer is negligent in controlling working conditions by, for example, failing to “monitor the workplace, … respond to complaints, … provide a system for registering complaints, or [by] effectively discourag[ing] complaints from being filed.”

Applying the law, the court held:

First, there is some evidence OCFS failed to respond appropriately to plaintiff’s initial complaint about Davis. Plaintiff testified she had an “in-depth conversation” with Lucky in December 2014 or early January 2015, before she went to the off-site training, regarding Davis’s conduct toward her. (Kenney Dep. at 137). At that time, the only action that was taken in response was to change the locks on the CSU door.

Second, there is some evidence OCFS failed to monitor the workplace. According to the EODD report, Lucky had “advised Mr. Davis that he was in the CSU too much, where he is off camera,” and that “[b]oth Mr. Smith and Mr. Lucky stated that they advised male staff not to talk to female staff off-camera.” (EODD Report at 7). Yet plaintiff’s testimony suggests this is exactly what happened—Davis was frequently in the CSU with plaintiff when he engaged in the allegedly harassing behavior toward her. This occurred despite the fact that Lucky apparently knew Davis was “ ‘too chummy with other staff,’ and ‘too informal.’ ” (Id.). In other words, OCFS may have imposed appropriate restrictions, but there is evidence it failed to enforce those restrictions.

Third, there is some evidence OCFS did not provide an adequate system for registering complaints. Although OCFS has an employee handbook containing internal complaint procedures, there is a question as to whether plaintiff received the entire handbook initially. (See e.g., Kenney Dep. at 28.). In addition, regardless of whether plaintiff had a copy of the handbook, the EODD report casts doubt on how well it was disseminated and explained. Specifically, the report notes that the investigation “revealed a lack of information provided to new hires as to their rights and recourse regarding a workplace free from discrimination,” and “recommend[ed] a review of new employee training in this regard.” (EODD Report at 8). Finally, the casual way in which Lucky first responded to plaintiff’s original complaint in December 2014 or early January 2015 and then the way he told plaintiff on June 25, 2015, about the decision to return Davis to work—without telling her they would be assigned to different shifts—provides additional evidence of a lax system for addressing complaints at Red Hook.

Therefore, the court concluded that questions of fact precluded summary judgment on the issue of whether OCFS was negligent in controlling working conditions.

1 I discuss the court’s evaluation of plaintiff’s “quid pro quo” sexual harassment claim here.
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