Sexual Harassment Allegations Insufficiently Alleged, Notwithstanding Assertion of “Fondling”

In Lekettey v. City of New York, No. 15-1169-CV, 2016 WL 482109 (2d Cir. Feb. 8, 2016), the court affirmed a lower court’s dismissal of plaintiff’s complaint alleging sexual harassment.

There are generally two theories of sexual harassment recognized under Title VII of the Civil Rights Act of 1964: (1) “quid pro quo” sexual harassment, and “hostile work environment” sexual harassment.

“Quid Pro Quo” Sexual Harassment

“A quid pro quo Title VII sex discrimination claim requires that the plaintiff-employee [ ] establish that she was denied an economic benefit either because of gender or because a sexual advance was made by a supervisor and rejected by her.”

Plaintiff failed to sufficiently allege this theory:

Plaintiff does not assert that Svetlana Filipovich, who allegedly unlawfully fondled Plaintiff in a manner that [was] explicitly and emphatically rejected by Plaintiff, was her supervisor, only that she had a position and title superior to Plaintiff. Nor does she allege any non-conclusory facts from which we could draw an inference of any connection between plaintiff’s rejection of Filipovich’s alleged sexual advance and her termination over a year later. Therefore, we agree with the district court that plaintiff failed adequately to allege quid pro quo sex discrimination.

“Hostile Work Environment” Sexual Harassment

“A hostile work environment claim requires a plaintiff to show that (1) the workplace is permeated with discriminatory intimidation, ridicule, and insult … that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, and (2) a specific basis exists for imputing the conduct that created the hostile environment to the employer.”

The court held that while plaintiff’s allegations might have been sufficient as to the first element, they were insufficient under the second:

Plaintiff’s allegation that she was “fondled” is particularly serious because it involved a sexually explicit physical touching. However, even assuming that this incident combined with vague allegations of continued harassment by Filipovich were sufficient to allege that a hostile work environment existed, plaintiff failed to plead facts from which we can draw an inference that Filipovich’s offensive conduct can be imputed to her employer.

If Filipovich were plaintiff’s supervisor, defendants may be held strictly liable for her actions, but if Filipovich was not a supervisor then defendants are liable only if they were negligent in controlling working conditions. Vance v. Ball State Univ., 133 S.Ct. 2434, 2439 (2013). [P]laintiff does not allege Filipovich was her supervisor, and there are no facts from which we could find that Filipovich was empowered by the employer to take tangible employment actions against her. Therefore, we can impute liability to the defendants only if they were negligent in controlling working conditions. Plaintiff’s complaint alleges no facts from which it can be plausibly inferred that defendants were negligent or unresponsive to her complaints about the workplace. To the contrary, the complaint includes the fact that the Parks Department’s Equal Employment Office investigated plaintiff’s complaint about Filipovich and found that probable cause existed to support plaintiff’s complaint and that defendants transferred plaintiff’s workstation at her request to be moved further away from Filipovich. Thus, plaintiff has not adequately pleaded a hostile work environment claim.

This decision is instructive on how courts interpret the Supreme Court’s 2013 decision in Vance v. Ball State Univ., 133 S.Ct. 2434 (2013), which held “that an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim.”

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