Sexual Harassment Claim Survives Dismissal

In Ellis v. Washington, 2018 WL 3575518 (W.D.N.Y. July 25, 2018), the court held that plaintiff, who worked as part of the County’s Work Experience Program (WEP), plausibly alleged claims for sexual harassment based on her supervisor’s alleged inappropriate conduct.

From the decision:

Plaintiff’s Complaint plausibly alleges a Monell violation. It alleges that the County was aware of sexual assault and harassment incidents involving Washington and that he harassed Plaintiff before the alleged rape. Despite the County’s knowledge of Washington’s conduct, County officials blatantly disregarded this knowledge and specifically told WEP participants to report incidents of sexual misconduct to Washington, effectively placing the fox in charge of the hen house. These allegations establish at the pleading stage that Monroe County exhibited a policy of inaction in light of notice that its program would cause constitutional violations.

Because municipalities are not liable for their employees’ purely private acts, Plaintiff must also show that Washington acted under “color of law.” See Claudio v. Sawyer, 675 F. Supp. 2d 403, 410 (S.D.N.Y. 2009) (“Without a state actor, there can be no independent constitutional violation” and a “claim against [a municipality] will necessarily fail.”) Defendants argue that, even if Plaintiff established a custom, policy, or practice, the “§ 1983 claim [must] still fail because Defendant Washington was not acting under color of law when he allegedly sexually assaulted Plaintiff.” ECF No. 30-2 at 8.

*3 An official acts under color of state law when his actions are “made possible only because the wrongdoer is clothed with the authority of state law.” U.S. v. Walsh, 194 F.3d 37, 51 (2d Cir. 1999). Washington allegedly used his apparent authority as a County supervisor when he lured Plaintiff to the janitor’s closet, raped her, and threatened to terminate her benefits if she reported his actions or refused to acquiesce in his demands. His supervisory position with the County thus aided his wrongful conduct and, accordingly, Plaintiff has plausibly alleged that Washington acted under color of law.

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