In Oliver v. New York State Police, 2020 WL 1989180 (N.D.N.Y. April 27, 2020), the court, inter alia, granted defendant’s motion for summary judgment on plaintiff’s gender-based hostile work environment claim under Title VII of the Civil Rights Act of 1964. While the court held that the alleged conduct was sufficiently “severe or pervasive”, there was no specific basis for imputing the hostile work environment to the employer.
As to the first point, the court explained:
On a weekly basis, and sometimes more often, SI Kelly demanded that Plaintiff report directly to him, without her supervisor or teammates, to go over files and while going over files, he would stand so close as to be touching her. (Dkt. No. 289, at 9–11; Dkt. No. 256-2, at 187). The NYSP argues that SI Kelly was equally harsh in his supervision of all employees, and that his conduct was not based on gender. “It is axiomatic that to prevail on a claim of hostile work environment based on gender discrimination, the plaintiff must establish that the abuse was based on her gender.” Kaytor, 609 F.3d at 547. Here, there is evidence that SI Kelly’s requirement that Plaintiff work in close physical proximity to him was gender based; Inv. KR, also female, testified that SI Kelly required her to work closely with him, but did not impose this requirement on male investigators. (Dkt. No. 289-13, at 88; id. at 85, 92–93 (Inv. KR also experienced SI Kelly’s “wrath”— she alleges that he transferred her to his team after she failed to answer his phone call and relegated her to answering phones while the male investigators his team were “out in the field”)). See Leibovitz v. New York City Transit Auth., 252 F.3d 179, 190 (2d Cir. 2001) (“[W]e recognize that evidence of harassment directed at other co-workers can be relevant to an employee’s own claim of hostile work environment discrimination.”). There is also is evidence that SI Kelly used intimidation to ensure Plaintiff would report to him by subjecting her to counseling memoranda or harsh verbal reprimands if she failed to report. (Dkt. No. 289, at 11).
At the same time, Plaintiff asserts that Inv. Peterson sexually harassed Plaintiff “every single time” they worked at the office together, (Dkt. No. 256-2, at 233), hugging her closely whenever he saw her, poking her, grabbing and slapping her buttocks, kissing her neck, and making lewd gestures with his tongue. (Id. at 220–22). Plaintiff states that Inv. Peterson did this “openly” in the office. (Id. at 221). Together, the alleged conduct by SI Kelly and Inv. Peterson is sufficiently intimidating and humiliating, severe and pervasive, to have altered the conditions of Plaintiff’s working environment.
*31 In addition, Plaintiff has identified genuine issues of material fact as to whether the conduct was subjectively and objectively abusive. Plaintiff testified that she felt “embarrassed” when male colleagues walked by and saw her in the office with SI Kelly. (Id. at 570–71). Further, there is evidence from which a factfinder could conclude that the work environment caused Plaintiff psychological harm, (see, e.g., Dkt. No. 289-13, at 11 (Lt. Owens stating in IAB report that during the interview regarding Plaintiff’s complaint against SI Kelly that “it was difficult at times to keep her focused on a topic and she spoke at length, becoming more emotional as she talked”)). See Leibovitz, 252 F.3d at 189 (explaining that “a plaintiff is not required to demonstrate a tangible psychological injury” but that “psychological trauma is a consideration”). Moreover, there is evidence that SI Kelly’s conduct was noticeable enough in the office to prompt Plaintiff’s immediate supervisors to warn her “to watch out” because he was “out to get” her, and coworkers to tease Plaintiff by suggesting she should “just have sex” with him or referring to him as “her boyfriend.” (Dkt. No. 256-2, at 155; Dkt. No. 289-9, at 2). The Court therefore concludes that Plaintiff has raised material issues of fact as to whether she suffered a gender-based hostile-work environment.
Turning to the second point, the court explained that where a hostile work environment is created by a non-supervisor co-worker, the employer may still be liable, but “only for its own negligence.” To show negligence, a plaintiff needs to provide evidence “that the employer failed to provide a reasonable avenue for complaint or that it knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action.”
Applying the law, the court explained:
Here, there is no dispute that the NYSP provided a reasonable avenue for complaint and that the IAB conducted a prompt and extensive investigation into Plaintiff’s allegations of sexual harassment by both SI Kelly and Inv. Peterson. (Dkt. No. 256-2, at 821–1229, 1231). There is evidence that the IAB disregarded Inv. KR’s corroborating testimony that SI Kelly had acted in a gender discriminatory manner. (Dkt. No. 289-13, at 88). However, the NYSP appears to have remedied the situation with SI Kelly. On November 18, 2013, Lt. McKee directed SI Kelly to have no further supervisory contact with Plaintiff, and she has not alleged any harassment by SI Kelly after that date.
With respect to Inv. Peterson, despite the IAB’s conclusion that Inv. Peterson’s “physical conduct of sexual nature created an offensive work environment” for Plaintiff, (Dkt. No. 289-31, at 8), this conduct was not referenced in the “Letter of Censure”; he was “censured” for acting “unprofessionally toward another member assigned to your unit when [he] stuck [his] tongue out at her.” (Dkt. No. 256-2, at 1269). Plaintiff was assigned to the same team as Inv. Peterson following her complaint, (Dkt. No. 289, at 68), but there is no evidence that Inv. Peterson engaged in any harassment after December 3, 2013. (Dkt. No. 302, at 18). Upon learning of Peterson’s conduct on December 3, 2013, Lt. McKee “immediately contacted” Internal Affairs; thereafter directed Peterson not to work with Plaintiff; and instructed Inv. Peterson “that any future behavior that could be deemed harassment would be subject to disciplinary action.” (Dkt. No 264, at 6). These remedial steps apparently worked. Plaintiff testified, “I reported it and then it ended.” (Dkt. No. 256-2, at 562).
Based on this, the court concluded that plaintiff “failed to adduce evidence from which a jury could find that the New York State Police was negligent in remedying the harassment.”