In Suares v. Cityscape Tours, the Southern District of New York dismissed plaintiff’s claims for, among other things, hostile work environment and retaliation, and granted defendants’ motions for summary judgment.
Plaintiff worked as a NYC double-decker bus tour guide. Plaintiff alleged that, at a holiday party, a co-worker (Singh) assaulted her. Specifically, she alleged that Singh “jumped onto the couch where she was sitting, threw his left leg over her shoulder, placed his right hand on top of or in the back of her head, and began banging his [unexposed] genitals into her face.” Defendant then fired Singh.
Plaintiff sued, claiming that defendant retaliated against her for her complaints by giving her unfavorable schedules.
While the court’s opinion contains instructive analysis as to various issues – such as retaliation, exhaustion of remedies, summary judgment procedure, and the status of a defendant as plaintiff’s “employer” – here I focus on the court’s decision to dismiss plaintiff’s hostile work environment claim.
While it was undisputed that Singh sexually assaulted plaintiff, and “[a] rational jury could therefore find that that conduct was sufficiently severe, and resulted in an intolerable alteration of Suares’ working conditions”, plaintiff’s hostile work environment failed the second part of the analysis. Specifically, plaintiff failed to show “a specific basis … for imputing the conduct that created the hostile environment to the employer.” (Emphasis in original.)
Initially, the court noted that the lack of an employee handbook or sexual harassment policy was not alone sufficient to show “that the employer has failed to provide a reasonable avenue for complaint or that the employer knew of the harassment but did nothing about it.”
In addition, plaintiff could not rely on the conduct of her supervisor as constituting a “tangible employment action” sufficient to trigger automatic vicarious liability, because she provided “no explanation or evidence for how [the supervisor] created a hostile work environment or acted as a ‘harassing supervisor.'”
The uncontroverted facts show that a reasonable avenue of complaint was available and utilized, resulting in the swift termination of Singh and preventing any future contact between Suares and Singh. The Court finds that no reasonable jury could determine on this record that the JAD Defendants failed to provide Plaintiff with a reasonable avenue of complaint, or that they knew of the harassment, but did nothing about it. Plaintiff knew how to make a complaint, and did so, and the complaint was adequately addressed through the swift termination of Mr. Singh.
The court therefore granted defendants’ motion for summary judgment on plaintiff’s hostile work environment claim.