Application of Faragher/Ellerth Defense Justifies Summary Judgment Dismissal of Age-Based Hostile Work Environment Claims, Second Circuit Holds

In Ferrara v. Sterling, Inc., No. 23-0454-cv, 2024 WL 485742 (2d Cir. Feb. 8, 2024), the U.S. Court of Appeals for the Second Circuit affirmed the lower court’s award of summary judgment to defendant on plaintiff’s age-based hostile work environment claims.

The court held that even if the plaintiff had established the existence of a hostile work environment, the defendant was entitled to summary judgment based on the “Faragher/Ellerth” affirmative defense (whose name derives from two U.S. Supreme Court cases by those names).

It discussed and applied the defense as follows:

The [Faragher/Ellerth] defense comprises two elements: that (1) the employer exercised reasonable care to prevent and correct promptly any discriminatory harassing behavior, and (2) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. The defense is available for claims under both the ADEA and the NYSHRL. The question, on summary judgment, is whether reasonable jurors could disagree about whether an employer’s response was so effectively remedial and prompt as to shield it from liability as a matter of law.

With respect to the first element of the defense, Ferrara does not dispute that Sterling had an anti-discrimination policy with complaint procedures in place at the time of the alleged harassment. See Caridad v. Metro–North Commuter R.R., 191 F.3d 283, 295 (2d Cir. 1999) (“Although not necessarily dispositive, the existence of an anti-harassment policy with complaint procedures is an important consideration in determining whether the employer has satisfied the first prong of this defense.”), abrogated on other grounds by In re Initial Pub. Offering Sec. Litig., 471 F.3d 24, 39–40 (2d Cir. 2006). Moreover, it is uncontroverted that, after Ferrara complained to [Human Resources] on September 1, 2017, Sterling conducted an investigation which included interviewing the coworkers whom Ferrara identified as having knowledge of his allegations, and the investigation was completed on January 2, 2018. Importantly, Ferrara concedes Gullo never had any supervisory role over Ferrara after Ferrara’s initial complaint to Human Resources in September 2017 and, in fact, Gullo resigned from Sterling in February 2018; no further corrective action was therefore required by Sterling to remedy the alleged hostile work environment, as Ferrara conceded that only Gullo made the ageist comments. Based upon these uncontroverted facts, no rational juror could find that Sterling failed to exercise reasonable care in identifying and promptly correcting alleged discriminatory harassment by a supervisor in its workplace.

With respect to the second element of the defense, Ferrara admitted that, prior to his demotion, although he had asked Gullo to cease making ageist remarks in April, he never complained to Human Resources over the course of the months of the alleged harassment by Gullo. Nor did he call the anonymous Human Resources “hotline” that Sterling makes available to its employees to report harassing or discriminatory behavior. Ferrara explained that he was aware of the hotline, but did not utilize it because, in “[his] gut at the time,” he “didn’t trust the process.” Ferrara’s subjective lack of trust in the established complaint procedures does not render his failure to use such procedures reasonable. See Leopold v. Baccarat, Inc., 239 F.3d 243, 246 (2d Cir. 2001) (“A credible fear [of reporting discrimination] must be based on more than the employee’s subjective belief. Evidence must be produced to the effect that the employer has ignored or resisted similar complaints or has taken adverse actions against employees in response to such complaints.”). In short, we conclude that there is no evidence from which a reasonable jury could find that Sterling failed to meet its burden on the second element of the affirmative defense.

[Citations and internal quotation marks omitted.]

Based on this, the Second Circuit held that summary judgment was warranted in defendant’s favor on plaintiff’s hostile work environment claims asserted under the Age Discrimination in Employment (ADEA) and the New York State Human Rights Law.

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