In Zaja v. SUNY Upstate Medical University/Upstate Healthcare Center, 5:20-CV-337 (MAD/TWD), 2022 WL 4465498 (N.D.N.Y. Sept. 26, 2022), the court, inter alia, granted defendant’s motion for summary judgment on plaintiff’s hostile work environment sexual harassment claim asserted under Title VII of the Civil Rights Act of 1964. (The court did, however, deny defendant’s motion for summary judgment on plaintiff’s retaliation claim.)
In sum, while plaintiff presented sufficient evidence to demonstrate that while (1) he was subjected to “severe” sex-based conduct by his co-workers, (2) there was no basis for imputing those co-workers’ conduct to the defendant.
As to the first element, the court held that a reasonable jury could conclude that the conduct was severe, noting, e.g., plaintiff’s testimony that two co-workers would touch him inappropriately every day, and that one would touch his hand, hold his hand, rub his forearm, grab his shoulder, and put her breasts on his arm when he was trying to do his work.
It also noted:
Moreover, the unwanted touching continued after Plaintiff expressed that it made it him uncomfortable. Plaintiff testified that “I told her not to touch my butt anymore, she told — she laughed about and try to laugh it off and then touched me again.” Id. Plaintiff’s allegations are the exact type of repeated unwanted touching that the Second Circuit found to be actionable in Redd.
Defendant states that the initial internal complaint made by Plaintiff only included less severe conduct, indicating that Sewell and Huddleston were “rubbing on [him] and flirting and that when he did not reciprocate, they started getting offensive.” Dkt. No. 32-8 at 11 (internal quotations omitted). Defendant also notes that when Plaintiff was interviewed by an investigator, Plaintiff “merely” alleged that Sewell and Huddleston were “close talking to him, that she rubbed her chest against him, and that when he moved, she followed him” and that “she brushed up against him, and that she did so to make another staffer jealous.” Id. at 11-12. To the extent that Plaintiff’s earlier statement differ from his deposition, such an issue goes to the weight of the evidence. “ ‘Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment.’ ” Jeffreys, 426 F.3d at 553–54 (quotation omitted). Accordingly, taking all reasonable inferences in the Plaintiff’s favor, the Court finds the alleged conduct to be severe.
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This, unfortunately for plaintiff, does not end the matter, since “[i]n addition to establishing that he was subjected to a hostile work environment, the plaintiff must establish that the conduct which created the hostile situation should be imputed to the employer.”
The court summarized the “black letter” law on this point:
The standards for assessing vicarious liability differ depending on the status of the alleged harasser.” Brown v. City of New York, No. 11 Civ. 2915, 2013 WL 3789091, *12 (S.D.N.Y. July 19, 2013). “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.’ ” Russell, 739 Fed. Appx. at 30 (quoting Duch, 588 F.3d at 762).2 “[T]he plaintiff must demonstrate 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.’ ” Summa v. Hofstra Univ., 708 F.3d 115, 124 (2d Cir. 2013) (quoting Duch, 588 F.3d at 762). “In determining the appropriateness of an employer’s response, we look to whether the response was ‘immediate or timely and appropriate in light of the circumstances, particularly the level of control and legal responsibility [the employer] has with respect to [the employee’s] behavior.’ ” Id. (quoting Crist v. Focus Homes, Inc., 122 F.3d 1107, 1111 (8th Cir. 1997)). “The standard for reviewing the appropriateness of an employer’s response to co-worker harassment is essentially a negligence one, and reasonableness depends among other things on the gravity of the harassment alleged.”
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.” ’ ” Russell, 739 Fed. Appx. at 30 (quoting Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 153 (2d Cir. 2014)). “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.’ ” Id. (quoting Snell v. Suffolk Cty., 782 F.2d 1094, 1104 (2d Cir. 1986)). “Evidence that an employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed would be relevant.”
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Applying the law, the court agreed that defendant provided a reasonable avenue for plaintiff to complain (notably, a Code of Conduct, a Non-Discrimination and Equal Opportunity Policy, and a Harassment Prevention Policy), and that it took “appropriate remedial action” (notably, by immediately initiating an investigation, resulting in its declining to find plaintiff’s claims substantiated, and taking no action against the alleged harassers).