In a recent decision, Russell v. New York University, 2018 WL 3115795 (C.A.2 June 25, 2018) (Summary Order), the court affirmed the dismissal of plaintiff’s hostile work environment claim. This case is instructive as to when an alleged harasser’s conduct may be “imputed” to an entity defendant/employer.
The law:
To prevail on a hostile work environment claim under either Title VII or the ADEA, a plaintiff must make two showings: (1) that the harassment was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment and (2) that there is a specific basis for imputing the conduct creating the hostile work environment to the employer.
The court determined that it need not address the first element, because plaintiff failed to show the second.
As to that element, the court explained:
In a situation such as this, ‘when the harassment is attributable to a coworker, rather than a supervisor, … the employer will be held liable only for its own negligence.’ ” Duch, 588 F.3d at 762 (quoting Distasio v. Perkin Elmer Corp., 157 F.3d 55, 63 (2d Cir. 1998)).1 Thus, Russell must establish either that: (1) the NYU Defendants “failed to provide a reasonable avenue for complaint,” or (2) that the NYU Defendants “knew … about the harassment yet failed to take appropriate remedial action.” Id. (quoting Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir. 2000)); see also Distasio, 157 F.3d at 65 (“An employer that has knowledge of a hostile work environment has a duty to take reasonable steps to remedy it.”).
Since plaintiff was unable to argue that the defendants failed to provide a reasonable avenue for complaint – as she took advantage of defendant’s internal complaint system – she argued that defendants’ “efforts to remedy the harassment fell below an objective standard of reasonableness.”
The court agreed with the district court that no reasonable jury could find for plaintiff on this issue.
The court explained:
“The appropriateness of an employer’s remedial action” in response to an employee’s complaint of a co-worker’s harassment “must ‘be assessed from the totality of the circumstances.’ ” Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 153 (2d Cir. 2014) (quoting Distasio, 157 F.3d at 65). An employer cannot be subject to a hostile work environment claim, however, if the “employer has in good faith taken those measures which are both feasible and reasonable under the circumstances to combat [the] offensive conduct. … We conclude that no reasonable jury could find that the NYU Defendants failed to, “in good faith[,] take[ ] those measures which are both feasible and reasonable under the circumstances.” Id. The record strongly suggests that “[e]ach complaint that [Russell] brought directly to [the NYU Defendants’] attention was dealt with quickly and in proportion to the level of seriousness of the event.” Summa, 708 F.3d at 125. There is also no genuine dispute that NYU’s Office of Equal Employment (“OEO”) undertook an internal investigation into the harassment, and that the NYU administration—among other things—checked the IP addresses that Russell provided them to discover whether Russell’s anonymous harasser possessed a connection to NYU. Finally, there is no genuine dispute that the NYU administration attempted to engage directly with the Manhattan District Attorney (“DA”)’s Office on Russell’s case. Indeed, if anything, the NYU Defendants invested more effort into investigating Russell’s harassment than Russell herself would have liked: Russell repeatedly informed the NYU Defendants to cease contacting the DA’s Office for information about her case, because such information in her view was “confidential” and “not [their] business.” App’x at 22, 24. In short, any reasonable jury would conclude that once the NYU Defendants “ha[d] knowledge of a” discriminatory “atmosphere in the workplace,” they fulfilled their “duty to take reasonable steps to eliminate it.”