Sexual Harassment (Hostile Work Environment) & Retaliation Claims Properly Dismissed Against Time Warner Cable

In Szwalla v. Time Warner Cable LLC, No. 15-3479, 2016 WL 7018340 (2d Cir. Dec. 1, 2016) (Summary Order), the Second Circuit affirmed the summary judgment dismissal of plaintiff’s hostile work environment/sexual harassment and retaliation claims under Title VII of the Civil Rights Act of 1964. In sum, plaintiff alleged that two supervisors sexually harassed her and that her employer, Time Warner Cable,  retaliated against her when she reported the harassment.

Hostile Work Environment

First, the court held that plaintiff’s claim, as to comments made by one supervisor, was dismissed on statute of limitations grounds:

The district court properly dismissed as time-barred Szwalla’s hostile work environment claim based on comments made by her supervisor Paul Noyd in 2009. In a jurisdiction with a state fair employment agency, a plaintiff’s discrimination claim is time-barred if it is not filed with the Equal Employment Opportunity Commission within 300 days of the alleged discriminatory act or within 30 days of the termination of the state proceedings. Szwalla’s 2011 administrative complaint was untimely as to Noyd’s conduct and did not assert a continuing violation theory.

The court cited authority for the proposition that one “may not rely on a continuing violation theory if she has not asserted it in her administrative proceedings.”

Second, the court held that plaintiff’s claim was properly dismissed as to the conduct of a second supervisor on the basis of the so-called Faragher/Ellerth affirmative defense (named after the Supreme Court decisions from which the defense is derived.

The court explained:

The district court also properly determined that TWC had successfully raised an affirmative defense to Szwalla’s hostile work environment claim based on her second supervisor’s conduct. An employer may avoid liability for a supervisor’s sexual harassment where it shows that (1) the employer exercised reasonable care to prevent and correct promptly any sexually 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. As the district court determined, TWC satisfied the first prong of the Faragher/Ellerth defense because the summary judgment evidence showed that it had anti-harassment policies in place that were widely distributed and allowed for employees to bypass supervisors when filing complaints. The summary judgment evidence also showed that TWC exercised reasonable care to correct the sexually harassing behavior when it promptly responded to Szwalla’s complaint by suspending and terminating her second supervisor. The second prong of the defense was satisfied because the evidence showed that Szwalla did not report her supervisor’s conduct for a year and she did not demonstrate that she had a credible fear that a complaint would be ignored or would result in an adverse employment action.

Thus, one take-away from this decision is that failure to report a supervisor’s objectionable conduct for, e.g., one year can have adverse consequences in litigation.


The court next held that the district court properly dismissed plaintiff’s retaliation claim.

It cited the well-established legal principles governing that claim:

In order to state a prima facie case of retaliation, a plaintiff must show that (1) she engaged in protected activity; (2) the defendant knew of this protected activity; (3) she suffered an adverse employment action; and (4) a causal connection exists between the protected activity and the adverse employment action. Should the plaintiff present a prima facie case, the burden shifts to the defendant to articulate some legitimate nondiscriminatory reason for the action. Where a defendant presents legitimate nondiscriminatory reasons for adverse employment actions, a plaintiff may prevail only if she can show that her participation in the protected activity was the “but for” cause for the adverse employment action.

Applying the law, the court explained: “Even assuming that Szwalla’s transfer and termination were adverse employment actions and that she stated a prima facie claim of retaliation, her claim must fail because TWC provided legitimate nondiscriminatory reasons for its actions and because Szwalla cannot show that her participation in protected activity was the “but for” cause of her transfer and termination.”

Share This: