Hostile Work Environment Claim Stated; Court Addresses Novel Issue Regarding “Supervisor” Status

In Dikambi v. City University of New York, Dr. Carlton J. Adams, 19-CV-9937, 2021 WL 5518187 (S.D.N.Y. Nov. 24, 2021), plaintiff asserted claims of gender discrimination, sexual harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and state law. The court denied defendant’s motion for reconsideration of the court’s order denying, in part, defendant’s motion to dismiss.

The court framed the issue, and the relevant law, as follows:

The primary issue raised in CUNY’s reconsideration motion is whether Adams should be treated as a coworker or as a supervisor in determining CUNY’s liability. Absent its raising a specific affirmative defense, an employer is vicariously liable under Title VII for a supervisor’s creation of a hostile work environment, even without a showing of the employer’s negligence or other wrongdoing. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998). But an employer is vicariously liable for a coworker’s harassment only if it “provided no reasonable avenues for complaint or knew of the [coworker’s] harassment but did nothing about it.” See Distasio v. Perkin Elmer Corp., 157 F.3d 55, 63 (2d Cir. 1998). Because CUNY has not raised the affirmative defense established in Ellerth, there is little question that Plaintiff has stated a claim against CUNY if Adams is treated as a supervisor.

Here, Adams was Plaintiff’s direct supervisor during several incidents that occurred prior to the limitations period—but during the one incident that fell within that period, he was merely her coworker. Defendant argues that Adams’ status during that one timely incident should control, and that plaintiff failed to adequately allege facts supporting defendant’s liability under the stricter standard governing an employer’s vicarious liability for a coworker’s harassment.

The court noted that, to its knowledge, this question has not been directly addressed by the Second Circuit, or any of the district courts within it.

The court rejected defendant’s argument, explaining:

[T]he Court does not interpret the continuing violation doctrine to suggest, much less demand, the outcome CUNY advocates. In Morgan, the Supreme Court made clear that “consideration of the entire scope of a hostile work environment claim, including behavior alleged outside the statutory time period, is permissible for the purposes of assessing liability, so long as an act contributing to that hostile environment takes place within the statutory time period.” 536 U.S. at 105 (emphasis added). If earlier incidents can be considered for the general “purposes of assessing liability,” then it follows that they can inform the threshold inquiry in assessing such liability—which version of the vicarious liability standard controls. Indeed, it would be an extraordinarily strained reading of Morgan to conclude that determining an alleged harasser’s status is not part of “assessing liability.” Contrary to CUNY’s interpretation, a timely contributing act is not an “anchoring event” in the sense that it limits a court’s substantive analysis of a Title VII claim, see Dkt. 96 at 5; rather, it anchors the claim within the statutory time period, thus allowing a court to consider all events that contribute to that claim. Consistent with this reading, district courts outside this Circuit have assessed an employer’s vicarious liability under the standard for a supervisor’s harassment, not under the standard for a coworker’s harassment, when the timely incident contributing to a hostile work environment claim occurred when the alleged harasser was no longer the plaintiff’s supervisor. See, e.g.Rogers v. England, 362 F. Supp. 2d 269, 271-72 (D.D.C. 2005) (citing Morgan, 536 U.S. at 117) (finding that a former supervisor’s phone call to a plaintiff was sufficiently related to his earlier harassment to render the plaintiff’s claim timely and proceeding to consider whether the employer was entitled to the Faragher/Ellerth defense); Hernandez-Payero v. Puerto Rico, 493 F. Supp. 2d 215, 220, 222-24, 227-28 (D.P.R. 2007) (determining that a triable issue of fact existed as to whether a former supervisor’s conduct when he was no longer the plaintiff’s supervisor was sufficiently related to previous conduct to constitute a continuing violation, then assessing the employer’s liability under the Faragher/Ellerth standard).

The cases cited by CUNY in its supplemental brief are inapposite. It is true that these cases discuss the fact that a harasser was no longer a supervisor during a particular incident—but they treat that fact as relevant to whether an incident was related enough to earlier events to constitute a continuing violation, not as relevant to whether a harasser should be treated as a coworker or as a supervisor. See, e.g., Holmes v. Utah Dep’t of Workforce Servs., 483 F.3d 1057, 1068 (10th Cir. 2007); Lucas v. Chicago Trans. Auth., 367 F.3d 714, 727 (7th Cir. 2004); Torrel v. City of New York, No. 01-cv-9895 (DLC), 2003 WL 22335006, at *3 (S.D.N.Y. Oct. 14, 2003); see also Stewart v. Mississippi Transp. Comm’n, 586 F.3d 321, 328-29 (5th Cir. 2009) (concluding that intervening changes in a plaintiff’s work environment, including a temporary transfer away from a harassing supervisor’s crew, defeated the plaintiff’s continuing violation argument). In short, these cases concern the threshold question of whether the continuing violation doctrine applies, not the subsequent question of whether liability analysis is limited in scope after a court has determined that the doctrine does indeed apply. And CUNY has explicitly stated that is it not challenging the Court’s ruling that the February 2018 incident was sufficiently related to earlier incidents to constitute a continuing violation.

The court thus declined to conclude that “manifest injustice” would result in treating Adams as a supervisor for purposes of determining CUNY’s vicarious liability.

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