In a recent decision, Fay v. City of Newburgh et al, No. 21 Civ. 3140 (NSR), 2024 WL 4169552 (S.D.N.Y. Sept. 12, 2024), the court discussed and applied the “Faragher/Ellerth” affirmative defense, resulting in the granting of defendants’ motion for summary judgment on plaintiff’s sexual harassment claim asserted under Title VII of the Civil Rights Act of 1964.
From the decision:
Plaintiff claims that Defendant Donat’s sexual harassment of her created a hostile working environment.2 (Compl. ¶¶ 45-46.) “In order to withstand summary judgment on a hostile environment claim, Plaintiff must establish that (1) the harassment was so severe as to alter the terms and conditions of her employment, and (2) there is a basis for imputing the harassing conduct to the employer.” Breeding v. Cendant Corp., No. 01 CIV. 11563(GEL), 2003 WL 1907971, at *4 (S.D.N.Y. Apr. 17, 2003). “An employer who has notice that an employee is being sexually harassed has a duty to take reasonable steps to eliminate the harassment.” Id. (citing Distasio v. Perkin Elmer Corp., 157 F.3d 55, 62 (2d Cir. 1998)). An employer may avoid vicarious liability, however, by establishing that (1) it took reasonable steps to remedy the problem, and (2) the harassed employee unreasonably failed to avail herself of the corrective measures provided by the employer – known as the Faragher/Ellerth affirmative defense. See Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); Ellerth, 524 U.S. at 765.
Even assuming, arguendo, that Plaintiff could establish the existence of a hostile work environment, Defendant City is entitled to summary judgment based on the Faragher/Ellerth affirmative defense. Regarding the first element of the defense, an employer may demonstrate the exercise of reasonable care by pointing to the existence of an antiharassment policy during the period of the plaintiff’s employment. See Mack v. Otis Elevator Co., 326 F.3d 116, 128 (2d Cir. 2003); Caridad v. Metro–N. Commuter R.R., 191 F.3d 283, 295 (2d Cir. 1999). Here, the parties do not dispute that, at all times during Plaintiff’s term of employment, the City had an antiharassment policy (the “Policy”) in effect that prohibited harassment on the basis of sex. (See ECF No. 73-27 at 9, § 34-28.F.5.) The Policy specifically provided a mechanism for complaints against City Managers, such as Defendant Donat, and encouraged prompt reporting “before the conduct becomes severe or pervasive.” (See id. at 3, § 34-22.A.(1); see also id. at 9, § 34-28.F.5.) In accordance with the Policy, after Plaintiff shared her concerns with the City, the City promptly commenced an independent investigation, and allowed Plaintiff to take leave of absence from work. (See, e.g., Compl. ¶ 35; ECF No. 73-26.)
Plaintiff counters that the City’s investigation failed to conclude that harassment was occurring and therefore it put no safeguards in place to remedy her hostile work environment. (Pltf.’s Opp. at 6.) But Plaintiff’s argument “misapprehends the first element of the defense, which looks to the adequacy and efficacy of the employer’s procedures in addressing harassment, not simply to the specific discipline imposed as an end result of those procedures.” Miller v. New York State Police, No. 20-3976, 2022 WL 1133010, at *3 (2d Cir. Apr. 18, 2022). Plaintiff does not dispute that the City maintained a policy for dealing with the discriminatory behavior in question. (See Plaintiff’s Deposition, ECF No. 73-4 at 68-69.) Nor does she dispute the reasonableness of the Policy or its complaint procedures. See Miller, 2022 WL 1133010, at *3. Nor still has she presented evidence that the Policy was ineffective—i.e. that the City had previously ignored complaints of sexual harassment or failed to take corrective actions in appropriate cases. Rather, the undisputed facts demonstrate that, in accordance with the Policy, the City conducted an independent investigation in response to Plaintiff’s internal complaint and adopted the conclusion of its external investigator that Plaintiff’s claims of harassment were unsubstantiated. The Court therefore finds that there is no evidence from which a reasonable jury could conclude that the City failed to satisfy the first element of the Faragher/Ellerth affirmative defense.
Regarding the second element of the defense, “proof that an employee has unreasonably failed to use the employer’s complaint procedure normally suffices to satisfy the employer’s burden.” See Ferraro v. Kellwood Co, 440 F.3d 96, 102 (2d Cir. 2006). Defendant Donat’s alleged harassment of Plaintiff began in February 2019, but Plaintiff waited until April 2019 to make an internal complaint to the City about said harassment. (See ECF 73-4 at 68-69, 76, 87, 99-100.) To defeat the City’s affirmative defense, it is not enough, as Plaintiff contends, that “she utilized the City of Newburgh’s complaint procedure,” Pltf.’s Opp. at 7, but that she did so at time when the City could have acted to prevent further harassment. Despite being aware of the Policy, Plaintiff waited months to put the City on notice of her concerns, simply because “she didn’t know the details…[and] didn’t brief [her]self before that of what that [P]olicy would say, and how you were supposed to act accordingly.” (ECF No. 73-4 at 68-69.) This fact, however, does not excuse her failure to avail herself of the Policy while the alleged harassment was on-going.
Furthermore, even assuming that Plaintiff’s non-responses to Donat’s text messages constituted an objection to the alleged harassment, “informal complaints to [her] supervisor—and alleged harasser—are not enough for [Plaintiff] to show (as [s]he must to defeat the affirmative defense) that [s]he took advantage of the [City’s] preventive or corrective opportunities.” Miller, 2022 WL 1133010, at *3 (emphasis in original). “In some instances, it may be unreasonable for a victim of harassment to complain only to the harasser because, as a realistic and practical matter, there are other channels that are adequately indicated and are accessible and open.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 105 (2d Cir. 2010). The clear channel for raising Plaintiff’s concerns was through the Policy, and she unreasonably failed to do so.
Based on the foregoing, the court concluded that plaintiff “has not presented any evidence or testimony from which a reasonable jury could conclude that her failure to inform the City of her harassment while it was on-going was reasonable’ and therefore that the City is entitled to judgment as a matter of law on her hostile work environment claims.