In Del Villar v. Hyatt Hotel Corporation et al., 19-CV-10891 (JMF), 2022 WL 2316205 (S.D.N.Y. June 28, 2022), the court granted Hyatt’s motion for summary judgment on plaintiff’s claim of hostile work environment sexual harassment under Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, and the New York City Human Rights Law.
Plaintiff alleged, inter alia, that a union delegate (Francois) sexually harassed her for years by, among other things, making inappropriate comments about her body and attempting to kiss her and grab her from behind while she was cleaning the guest rooms assigned to her.
Notably, for purposes of this motion, defendant did not contest that plaintiff was subjected to a hostile work environment because of Francois’ conduct; rather, it contended that it could not be held liable for Francois’s conduct.
The court agreed, reasoning as follows:
First, Del Villar alleges that Hyatt did not provide a reasonable avenue for complaint because it “failed to adequately disseminate and translate its employee handbook.” Pl.’s Opp’n 17. But it is undisputed that Del Villar was provided with a copy of the policy against discrimination and reporting procedures and signed a written acknowledgment of such receipt. SOF ¶ 6; see ECF No. 68-1, at 37-38 (Del Villar’s acknowledgment of receipt of Hyatt’s policies); see also id. at 40-41 (Francois’s acknowledgment of receipt). Courts often find such evidence, standing alone, sufficient to establish a reasonable avenue of complaint. See, e.g., Fornah v. Cargo Airport Servs., LLC, No. 12-CV-3638 (RER), 2014 WL 25570, at *8 (E.D.N.Y. Jan. 2, 2014) (finding that where the plaintiff had received a copy of the workplace discrimination policy and “signed a written acknowledgment of receipt for it … there [was] no genuine issue of material fact as to whether [the d]efendant provided [the p]laintiff with a reasonable avenue of complaint”). In the face of this evidence, Del Villar asserts that she was unable to read the policy because it was distributed only in English. See Pl.’s Opp’n 17. Even so, however, “a court may still find, as a matter of law, that an employer provided a ‘reasonable avenue of complaint’ if the evidence shows that the plaintiff in fact knew how to make a complaint and that the complaint was adequately addressed.” McArdle v. Arms Acres, Inc., No. 03-CV-05721 (PGG), 2009 WL 755287, at *8 (S.D.N.Y. Mar. 23, 2009) (citing cases). That is the case here. Del Villar admits that she was “aware of the Hotel’s policy against discrimination and the reporting procedures [and had] received training on the policy,” SOF ¶ 6, and agreed at her deposition that she had “an understanding that Hyatt’s policy prohibited discrimination,” Del Villar Tr. 42. It is also undisputed that as soon as Del Villar made her complaint to human resources, Hyatt commenced an investigation and promptly terminated Francois’s employment. SOF ¶¶ 31-38; see, e.g., Borrero v. Collins Bldg. Servs., Inc., No. 01-CV-6885 (AGS), 2002 WL 31415511, at *12 (S.D.N.Y. Oct. 25, 2002). And in any event, Del Villar plainly understood that she could have complained earlier because, on her own account, she had threatened to report Francois to human resources several times and, each time, Francois’s harassment “stopped for about two months, more or less,” before starting up again. Del Villar Tr. 75-76; see also id. at 74 (Del Villar testifying that, during the videotaped assault, she told Francois, “Let me go, let me go, … otherwise, I’m going to take you to human resources. Look at the camera, it’s there.”).
Next, Del Villar argues that Hyatt knew or should have known about the harassment. “This standard requires a plaintiff to show that (1) someone had actual or constructive knowledge of the harassment, (2) the knowledge of this individual can be imputed to the employer, and (3) the employer’s response, in light of that knowledge, was unreasonable.” Duch v. Jakubek, 588 F.3d 757, 763 (2d Cir. 2009). At her deposition, however, Del Villar was clear that her July 12, 2018 complaint was the very first time she had mentioned the harassment to any supervisor or human resources representative. Del Villar Tr. 113. When asked to explain how it was that Hyatt “knew about the general discrimination and sexual harassment perpetrated against [her],” as she had alleged in the Complaint, Del Villar stated that she did not “remember having said that” and clarified that “[t]hey knew it after I told them about the incident.” Id. (emphasis added); see also id. at 114 (“I did have knowledge that he was harassing me, but not that the hotel knew about it.”). Moreover, Del Villar testified that no managers or other supervisors had had the opportunity to observe Francois’s harassment, because “when there was a manager present, he would not harass me.” Id. at 65. Citing Francois’s testimony, Del Villar argues that Hyatt should be held responsible because it “had an environment of goofing around and [Francois] did not think he did anything wrong by touching [her] on July 10, 2018.” Pl.’s Opp’n 14. But Francois’s testimony about “goofing around” referred to “touching” like “high fives,” “fist bumps,” or a “tap on the shoulder”; he also testified that “there’s some parts of their body where you’re not going to touch,” like “your private area.” Francois Tr. 220-25. Finally, Del Villar references a disjointed story involving Francois and another housekeeper named Cynthia. Pl.’s Opp’n 15. But from Francois’s deposition testimony, on which Del Villar relies, it appears that it was Francois who reported Cynthia to human resources, not vice versa. See Francois Tr. 280-85. In short, Del Villar offers absolutely no evidence to support her statement that it “is undisputed” that Hyatt’s human resources manager “knew of prior complaints made about defendant Francois, and failed to take any disciplinary action against him.” Pl.’s Opp’n 16.4
Finally, in the alternative, Del Villar attempts in passing to invoke the more plaintiff-friendly standards that apply when an employee alleges sexual harassment by a supervisor. See Pl.’s Opp’n 17; see also Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 103 (2d Cir. 2010) (finding that, under Title VII and NYSHRL, “[w]hen … the alleged harasser is in a supervisory position over the plaintiff, the objectionable conduct is automatically imputed to the employer”); Zakrzewska v. New Sch., 14 N.Y.3d 469, 928 N.E.2d 1035, 1039 (2010) (finding that the NYCHRL imposes liability on an employer where “the offending employee exercised managerial or supervisory authority” (internal quotation marks omitted)). She does so on the ground that she believed Francois was a supervisor because he was a union delegate and Hyatt never affirmatively told her that union delegates were not supervisors. Pl.’s Opp’n 17. But this argument is without merit. “[A]n employee is a ‘supervisor’ for purposes of vicarious liability under Title VII [and the NYSHRL] if he or she is empowered by the employer to take tangible employment actions against the victim,” Vance, 570 U.S. at 424 (2013), an objective standard that the Supreme Court adopted in part because it is “easily workable” and “can be applied without undue difficulty at both the summary judgment stage and at trial,” id. at 432. The standard under the NYCHRL is similarly objective. See N.Y.C. Admin. Code § 8-107(13)(b) (providing that “[a]n employer shall be liable for an unlawful discriminatory practice based upon the conduct of an employee or agent … where … [t]he employee or agent exercised managerial or supervisory responsibility”). Under these objective standards, it is undisputed that Francois was not Del Villar’s supervisor. SOF ¶¶ 13-14; see also, e.g., Mejia v. City of New York, No. 17-CV-2696 (NGG) (JO), 2020 WL 2837008, at *16 (E.D.N.Y. May 30, 2020) (finding that a union delegate was not a supervisor).
Based on this, the court concluded that plaintiff “failed to demonstrate that Hyatt is liable for Francois’s alleged misconduct under Title VII, the NYSHRL, or the NYCHRL” and that, therefore, “her hostile work environment and sexual harassment claims against Hyatt fail as a matter of law.”