Sexual Harassment Claim, Based on Conduct by Non-Supervisor, Dismissed; Employer Not Shown to be Negligent in Controlling Working Conditions

In Matsko v. New York, 2022 WL 137724 (N.D.N.Y. Jan. 14, 2022), the court, inter alia, granted defendants’ motion for summary judgment on plaintiff’s claim of sexual harassment under Title VII of the Civil Rights Act of 1964.

Here, the sexual harassment was alleged to have been committed by a non-supervisor; accordingly, the alleged wrongful conduct may only be imputed to the employer if they were “negligent in controlling working conditions.”

Here, the court holds that the plaintiff did not make that showing. From the decision:

The State Defendants argue that at all relevant times, they exercised due care in providing a workplace free from sexual harassment. In opposition, Plaintiff does not contest the State Defendants’ assertion that Defendant Safin was not her supervisor. Instead, Plaintiff argues that the evidence in the record establishes that there is a genuine issue of material fact with respect to whether the State Defendants were negligent in controlling work conditions.

To demonstrate that an employer is negligent in controlling working conditions, a plaintiff must adduce 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.

Here, the Court concludes no rational finder of fact could find that the State Defendants were negligent in controlling working conditions. First, there is no evidence to suggest that the State Defendants failed to provide a system for registering complaints. Both the June 2016 and November 2016 sexual harassment prevention policies clearly stated that sexual harassment could be reported by sending a “Discrimination/Sexual Harassment Complaint Form” to the OGS Diversity and Equal Employment Office, and included that office’s e-mail address, phone number, and fax number. This is, in fact, the method that was ultimately used to submit Plaintiff’s complaint. The November 2016 policy also provided that harassment reports could “be made to a supervisor or manager” as an alternative to filing a complaint with the Diversity and Equal Employment Office. Plaintiff argues that the complaint procedure was “deficient or unclear” because the November 2016 policy did not contain “any guidance or reassurance regarding bypassing harassing supervisors.” Although the November 2016 policy did not explicitly provide the reassurance Plaintiff seeks, the June 2016 policy did clearly state that complaints are sent to the Diversity and Equal Employment Office “to avoid a situation in which an employee is faced with complaining to the person, or a close associate of the person who would be the subject of the complaint.” Although Plaintiff argues that there is no proof that she read or understood either policy, she does admit that she underwent “some training for the [June] policy.”

Second, there is no evidence to suggest that the State Defendants failed to respond to Plaintiff’s complaints. Once Plaintiff made her complaint to the Associate Director of Human Resources at the Defendant Commission, the State Defendants rapidly proceeded to (1) complete a sexual harassment complaint form on Plaintiff’s behalf and submit it to the Diversity and Equal Employment Office; (2) place Plaintiff on administrative leave with pay; (3) place Defendant Safin on administrative leave with pay; (4) direct Defendant Safin to stay away from all work locations, not contact any other employees, and to keep Plaintiff’s complaint confidential, see id.; (5) suspend Defendant Safin without pay; and (6) ultimately issue Defendant Safin a notice of discipline seeking his termination, after which he resigned from his position. Indeed, after Plaintiff made her complaint to the Defendant Commission, Plaintiff did not work with Safin ever again.

Third, there is no evidence to suggest that the State Defendants discouraged sexual harassment complaints. It is undisputed that the State Defendants held regular agency-wide sexual harassment training programs, at least one of which Plaintiff attended had policies in place that prohibited sexual harassment; and provided multiple ways to report sexual harassment. Although Plaintiff argues that the State Defendants “did nothing” when they were notified that their training “apparently employed outdated and only semi-functioning videos,” that does not establish that the State Defendants had, in any way, “effectively discouraged complaints from being filed.”

Finally, there is no evidence that, through the exercise of reasonable care, the State Defendants should have known about the harassment before Plaintiff reported it. Plaintiff argues that the State Defendants “had reason to know Safin was harassing [P]laintiff months prior to [her] complaint,” because “[Defendant] Safin undertook unauthorized contact with the New York State Police in an effort to cause [P]laintiff’s termination in December 2016, and had to be directed by [human resources] to desist from such action.” However, Plaintiff does not explain how Defendant Safin’s efforts to have Plaintiff’s employment history investigated—even if unauthorized—should have caused the State Defendants to be aware of harassment that, at the time, had yet to be reported.

However, even if the Court were to find that Plaintiff had made out a prima facie case, the State Defendants have met their burden of articulating a legitimate, non-discriminatory reason for Plaintiff’s termination.8 Defendants assert that Plaintiff was terminated “based on material misstatements and omissions in her employment application and personal history disclosure form and [her] unsatisfactory time and attendance during [her] probationary period.” Because the State Defendants have provided a legitimate, non-discriminatory reason for Plaintiff’s termination, the burden shifts back to Plaintiff to come forward with evidence that the State Defendants’ proffered legitimate, non-discriminatory reasons are pretextual, thus supporting an inference that the real reason for Plaintiff’s termination was discriminatory.

Here, Plaintiff has not provided any evidence that would permit a rational finder of fact to infer that her termination was more likely than not based in whole or in part on discrimination. Indeed, Plaintiff does not dispute that she made a material misstatement in her employment application, and admits that her time and attendance record “was not very good,” There is no evidence in the record indicating that the State Defendants ever took any action or communicated to Plaintiff in a way that could be construed as discriminatory. Indeed, it was the State Defendants who completed and filed the original sexual harassment complaint form on Plaintiff’s behalf, immediately placed Defendant Safin on administrative leave, and ultimately sought his termination.

[Cleaned up.]

Based on this, the court granted the portion of the State Defendants’ motion seeking summary judgment on plaintiff’s Title VII-based sex discrimination claim.

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