By Brandi O. Brown, J.D.
Although the employer’s Faragher/Ellerth defense did not affect her NYCHRL claim, the defense to liability was a major stumbling block for the employee on her other claims.
In a lawsuit brought pro se by a NYC transit employee, a federal district court in New York, determined that while she could proceed with her claim of sexual harassment under the city’s human rights law, the Faragher/Ellerth defense blocked her federal and state law claims. The employee, who described being subjected to a “litany of harassment” up to and including having an axe swung at her head repeatedly, failed to use the authority’s “widely known anti-discrimination and anti-harassment policies and procedures.” Her claim against her supervisor individually will also proceed under state and city laws. The defendants’ motion for summary judgment was granted in part (Green v. New York City Transit Authority, September 21, 2020, Carter, A., Jr.).
Soured relationship. Nearly 20 years into her tenure as a New York City Transit Authority (NYCTA) employee, the plaintiff became involved in a romantic relationship with one of her supervisors. Eventually the relationship soured and ended, but according to the employee’s allegations her supervisor did not handle it well. He divulged details from their relationship to other employees and told them, incorrectly, that she had given him a sexually transmitted disease. He also would “buckle” the employee’s knees and “body check” her as she was walking to work. The supervisor also sent her pornographic images and propositioned her for sex multiple times. He also made “constant threats of physical intimidation.”
Coworkers become involved. Based on information shared with them by the supervisor, coworkers called the employee names such as “cheap-bitch,” and claimed she was “lazy,” “dumb,” and “slow.” She was also accused by unnamed coworkers of selling drugs, trying to poison them, and being a terrorist. Some coworkers told her that women do not do “this type of work” and others discussed the topic of a sex club with her. Coworkers, she alleged, also tampered with her car, phone, equipment, and other belongings.
Axe swung at her head. Ultimately she picked an assignment at a different location, at least in part because of the harassment she was facing. At the new assignment she continued to experience problems, alleging that she was passed over for overtime, denied promotion, and placed in dangerous situations. According to her allegations, the employee still had at least some contact with her old supervisor at the new location and, on one occasion approximately one year after she moved, he was watching as a coworker swung an axe back and forth by her head and face.
She alleged that the supervisor told her that “it’s just a matter of time,” which she took to mean that it would only be a matter of time before he got rid of her or she quit. She filed an EEOC charge soon thereafter, but never reported the harassment to the employer prior to that time. However, she contended that neither the charge, the EEOC’s investigation, nor this lawsuit has halted the harassment she experiences from coworkers and supervisors. After dismissal narrowed down her claims significantly and discovery then closed, the defendants filed a motion for summary judgment.
HWE claims. At the outset, the court determined that any discrimination claims falling outside of the 300-day period preceding her EEOC charge were time-barred. It nevertheless considered most of them for purposes of her hostile work environment claim pursuant to the “continuing violation” doctrine. Many of the incidents were connected to her affair with the supervisor, which fell outside of that time period, but at least one act contributing to the hostile work environment fell within it—the axe incident. The court also concluded that most of the incidents were properly exhausted, with the exception of any claims relating to conduct occurring after the close of the EEOC investigation.
Defense applies. The court had little trouble concluding that the conduct described by the employee could lead a reasonable jury to return a verdict in the employee’s favor on her hostile work environment claim under Title VII, the NYSHRL, or the NYCHRL. However, the court concluded that establishing the transit authority’s liability under the first two laws was made impossible by the fact that the employee failed to take advantage of the employer’s “widely known anti-discrimination and anti-harassment policies and procedures.” (The court recognized that it was “unclear” whether the Faragher/Ellerth defense applies to NYSHRL claims, but concluded that it was applicable under the “balance of authority” in the Circuit.) The employee failed to provide any “reasonable reason” for her failure to report the alleged harassment to her supervisors, the employer’s EEO office, or anyone else at the NYCTA. Thus, it was “shielded from liability” under Faragher/Ellerth.
With a few exceptions. However, Faragher/Ellerth is not applicable in the context of NYCHRL claims, the court explained, so that claim against the NYCTA survives. The individual claims against the ex-boyfriend supervisor under the NYSHRL and the NYCHRL also survived, the court concluded, because those laws allow for individual liability and the evidence could demonstrate that he actively participated in the conduct that gave rise to the employee’s claims under either the direct or indirect theories of liability.
One more claim goes forward. With regard to the employee’s other claims, including gender discrimination and retaliation, the court granted the employer’s motion in part. None of the identified discrete acts fell within the 300-day time window preceding her EEOC charge and, even if they had, the employer provided legitimate, nondiscriminatory reasons for those actions. Under the NYCHRL, however, her gender discrimination survived because she met the requirement that she be treated “less well” than others because of her gender and because the threshold regarding challenged conduct was lower.
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