In Melendez v. New York City Transit Authority et al, No. 159390/2013, 2021 WL 2627513 (N.Y. Sup Ct, New York County June 24, 2021), the court, inter alia, denied defendants’ motion for summary judgment on plaintiff’s claim of gender discrimination / sexual harassment. This decision is instructive as to the issue of whether and to what extent alleged harassment may be “imputed” to one’s employer.
Specifically, plaintiff alleged in her complaint a pattern of sexual harassment by Tony Aiken, the Vice Division Chairman of Transport Workers Union of America Local 100 and the Bronx Division Acting Chairman of TWU Local 100, and sought compensatory damages on causes of action sounding in gender discrimination and retaliation in violation of the New York City Human Rights Law, N.Y.C. Administrative Code § 8-107(1)(a)(3).
Having found that the alleged harasser’s alleged conduct would constitute gender discrimination under N.Y.C. Admin. Code § 8-107(1)(a)(3), the court turned to defendants’ argument that it should dismiss plaintiff’s discrimination claim because there was no basis to impute the alleged harasser’s conduct to defendants.
The pertinent statute, N.Y.C. Admin. Code § 8-107(13)(b), provides that an employer is liable for such conduct by its employee where:
(1) The employee or agent exercised managerial or supervisory responsibility; or
(2) The employer knew of the employee’s or agent’s discriminatory conduct, and acquiesced in such conduct or failed to take immediate and appropriate corrective action; an employer shall be deemed to have knowledge of an employee’s or agent’s discriminatory conduct where that conduct was known by another employee or agent who exercised managerial or supervisory responsibility; or
(3) The employer should have known of the employee’s or agent’s discriminatory conduct and failed to exercise reasonable diligence to prevent such discriminatory conduct.
The statute’s unambiguous language, held the court, “indicates the existence of strict liability in the employment context for acts of managers and supervisors, and for acts of coworkers where the employer knew of the act and failed to take prompt and effective remedial action, or should have known and had not exercised reasonable diligence to prevent it.”
Applying the law, the court explained:
Defendants have not made a prima facie showing of entitlement to dismissal of the gender discrimination claim, as their own lengthy recitation of the underlying facts raises questions of fact regarding at least two of the statutory bases for imputed liability. For example, defendants cite to the EEO memorandum dated April 12, 2013, annexed to the moving papers as Exhibit 8. The memo notes, inter alia, that several other dispatchers at the Kingsbridge depot either witnessed or were the recipients of comments by Aiken that were similar to those alleged by plaintiff. The memo states that Aiken made “inappropriate comments” to or about the dispatcher Lourdes Alvarado, when she first arrived at the depot in January 2012, which was several months before plaintiff began working there. According to the memo, Alvarado also stated that Aiken “ ‘constantly’ made inappropriate comments to female bus operators such as, ‘Isn’t she beautiful?’ ” Defendants’ argument that no one previously reported Aiken’s comments to defendants is misplaced. The statute is clear that defendants are “deemed to have knowledge” if the conduct in question was “known” by an employee with managerial or supervisory duties, such as a dispatcher, a position defendants describe as having supervisory duties over bus operators and having “authority to request that discipline be imposed upon a bus operator.” (Moving memorandum, p. 2) Thus, the EEO memo raises questions for the trier of fact as to whether Aiken’s purported behavior was known by dispatchers, or was otherwise common knowledge at the Kingsbridge depot such that defendants “should have known” about it.
Likewise, whether defendants “failed to take immediate and appropriate action” or “failed to exercise reasonable diligence to prevent such discriminatory conduct” is also an issue for the trier of fact. Defendants set forth their efforts of over approximately five years to dismiss Aiken, beginning when plaintiff made her first complaint to defendants in November 2012. However, although Aiken was transferred to a different depot, he was still permitted entry to the Kingsbridge depot for several weeks thereafter and plaintiff alleges that he appeared on her floor despite being banned from doing so. Further, in January 2013, while the EEO investigation was pending, defendants approved Aiken’s union’s request that Aiken be placed on “Union Release without pay,” which defendants characterize as the union’s attempt to protect Aiken from discipline (moving memorandum, p. 15), and which arguably prolonged and/or impeded defendants’ attempts to fire Aiken. As such, a trier of fact may question whether defendants’ actions in their dealings with Aiken were “appropriate” or demonstrated “reasonable diligence.”