In Pachura v. Lloyd J. Austin, III, Secretary, Department of Defense, 6:21-CV-0316 (LEK/ATB), 2022 WL 1909546 (N.D.N.Y. June 3, 2022), the court denied defendant’s motion to dismiss plaintiff’s hostile work environment sexual harassment claim asserted under Title VII of the Civil Rights Act of 1964.
The court summarized plaintiff’s allegations, in sum, as follows:
Between July 2019 and October 2019, [plaintiff’s co-worker] Magnano frequently sexually harassed Plaintiff, both in person and via Facebook Messenger. Id. at 5–8. In his many Facebook messages, Magnano shared sexual content about himself, including sending a photograph of his genitals, descriptions of working from home while nude and masturbating, and statements that he was sexually aroused by thinking of Plaintiff, that he imagined having sex with her, and that he had sex dreams about her. Id. Magnano also inquired about Plaintiff, requesting pictures of her tattoos, asking about her preferred sexual positions, and asking her if she “goes commando.” Id. On numerous occasions, Magnano requested to meet with Plaintiff in private, including asking to meet in the Union Office so he could see her tattoos, requesting to meet in private so that she could teach him to hula hoop, stating that they should take a “good long ride in the car,” asking Plaintiff to come check on him while he was taking a nap and practicing his hip movements, and asking her to join him in the closet. Id. On several occasions Magnano also stated his intention or desire to crawl under Plaintiff’s desk and look up her dress.
In denying defendant’s motion, the court explained:
“Where a hostile work environment is created by a co-worker who is not a supervisor, the employer can still be liable, but ‘only for its own negligence.’ … To demonstrate such negligence, a plaintiff must adduce evidence ‘that the employer failed to provide a reasonable avenue for complaint or that it knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action.’ ” Bentley v. AutoZoners, LLC, 935 F.3d 76, 92 (2d Cir. 2019) (quoting Summa v. Hofstra Univ., 708 F.3d 115, 124 (2d Cir. 2013)).
Defendant argues that DFAS was unaware of Magnano’s harassment until more than a month after it had ceased. Mot. at 13. Plaintiff does not dispute this assertion,3 instead arguing that once she informed DFAS of Magnano’s harassment, Defendant failed to take adequate remedial action. Resp. at 15–18. Defendant, in turn, does not argue that the response to Plaintiff’s report of harassment was adequate, instead contending that the hostile work environment cannot be imputed to Defendant because Defendant was unaware of the harassment at the time it occurred. Mot. at 12–15; Reply at 6–9. Thus, the question for the Court is this: If an employer learns of harassment and fails to take adequate remedial action, but no subsequent harassment occurs, can liability be imputed to the employer?
Courts addressing this question have reached different conclusions. Compare Fuller v. City of Oakland, Cal., 47 F.3d 1522, 1529 (9th Cir. 1995), as amended (Apr. 24, 1995) (“Title VII does not permit employers to stand idly by once they learn that sexual harassment has occurred” even when the harasser “voluntarily elects to cease his activities.”) with Russell v. Roadway Package System, Inc., No. 96-CV-3779, 1997 WL 403502 at *7 (N.D.Ill. Jul.15, 1997) (“Since a hostile work environment did not continue once plaintiff made her employer aware of the past harassment, there is no basis for holding defendant liable for sexual harassment.”). However, most courts agree that under Title VII, an employer’s obligation, upon learning of harassment, is to take remedial action to prevent future harassment. See, e.g., Lapka v. Chertoff, 517 F.3d 974, 984–85 (7th Cir. 2008) (“The emphasis is on the prevention of future harassment …. So the question is not whether the punishment was proportionate to the offense but whether the employer responded with appropriate remedial action reasonably likely under the circumstances to prevent the conduct from recurring.” (cleaned up)); Knabe v. Boury Corp., 114 F.3d 407, 412 (3d Cir. 1997) (“[T]o determine whether the remedial action was adequate, we must consider whether the action was reasonably calculated to prevent further harassment.” (internal quotation marks omitted)); McKenzie v. Illinois Dep’t of Transp., 92 F.3d 473, 480 (7th Cir. 1996) (“An employer’s response to alleged instances of employee harassment must be reasonably calculated to prevent further harassment under the particular facts and circumstances of the case at the time the allegations are made.”); c.f. Fuller, 47 F.3d at 1529 (“It is the existence of past harassment, every bit as much as the risk of future harassment, that the statute condemns. Employers have a duty to express strong disapproval of sexual harassment, and to develop appropriate sanctions.”
The court rejected defendant’s contention that “liability can never be imputed to an employer unless the harassment continues after it is reported to the employer,” noting that the case on which defendant relied “need not be interpreted to go that far.”