Zakrzewska v. The New School

• Court: U.S. District Court — Southern District of New York
• Writing for the Court: Lewis A. Kaplan
• Citation: Zakrzewska v. The New School, 598 F.Supp.2d 426 (S.D. N.Y. 2009)
• Decision Date: 26 January 2009
• Docket Number: No. 06 Civ. 5463(LAK).,06 Civ. 5463(LAK).
• Parties: Dominika ZAKRZEWSKA, Plaintiff, v. THE NEW SCHOOL, et ano., Defendants.

598 F.Supp.2d 426

Dominika ZAKRZEWSKA, Plaintiff, v. THE NEW SCHOOL, et ano., Defendants.

No. 06 Civ. 5463(LAK).

United States District Court, S.D. New York.

January 26, 2009.

COPYRIGHT MATERIAL OMITTED

Jason L. Solotaroff, Giskan Solotaroff Anderson & Stewart LLP, for Plaintiff.

Thomas S. D'Antonio, Ward Norris Heller & Reidy LLP, for Defendant The New School.

Theodore L. Blumberg, for Defendant Kwang-Wen Pan.

MEMORANDUM OPINION

(Corrected)

LEWIS A. KAPLAN, District Judge.

Plaintiff brings this sexual harassment-retaliation case against the alleged harasser, Kwang-Wen Pan, and Pan's employer, The New School ("TNS"). The matter is before the Court on TNS's motion for summary judgment dismissing the complaint as to it.

I. Facts

A. The New School's Policies

At all times relevant to this case, TNS had a policy prohibiting sexual harassment and romantic involvement between staff and students.¹ The policy was accessible on the TNS web site and published in its student handbook, which was given to students during the enrollment process.² The handbook instructed students to familiarize themselves with TNS policies and explained that the policies, including that with respect to sexual harassment, were available on the web site.³ The policy was sent also to staff.⁴ In addition, TNS had guidelines for dealing with issues of sexual harassment that provided a multi-step procedure for dealing with sexual harassment complaints.⁵

B. The Relationship Between Zakrzewska and Pan

Plaintiff enrolled as a freshman at TNS in the fall of 2002.⁶ In April 2003, she took a part-time job in TNS's Print Output Center, which was located within its Academic Computing Center.⁷ Pan was employed in the Computer Center, having worked there since 1998.⁸

Commencing in the summer of 2003 and continuing until at least February 2005, plaintiff and Pen exchanged e-mails, shared conversations, photos and music, and had dinner and attended an opera together.⁹ Indeed, plaintiff at one point sent an e-mail with her personal cell phone number to a group including Pan that she described as her "My Special People" and closed by stating "Now YOU may call me •i am Always waiting • Lets keep in touch[.] Love Dominika."¹⁰ And on June 24, 2004, plaintiff sent Pan an e-mail in which she stated that he was "one of my very few bbest [sic] friends • "¹¹ Nevertheless, as indicated above, the Court assumes for present purposes that plaintiff has made out a case that she was harassed by Pan.

C. Plaintiff's Complaint to TNS and Its Response

During this entire period—that is, from the summer of 2003 through May 2005— plaintiff never informed TNS that Pan had harassed her.¹² In May 2005, however, she complained to TNS that Pan had sexually harassed her.¹³ When notified by plaintiff of the alleged harassment, Carol Cantrell scheduled a meeting with plaintiff and Keila Tennent, TNS's associate general counsel.¹⁴ During the course of the meeting, plaintiff told Mss. Cantrell and Tennent that she had e-mails from Pan that supported her claim and promised to send them, which ultimately she did.¹⁵ Ms. Cantrell provided plaintiff with a copy of the TNS's sexual harassment policy at the meeting.¹⁶

Following the meeting, TNS initiated an investigation, which included speaking to Pan's supervisor, reviewing the e-mails plaintiff provided, attempting to contact co-workers identified by plaintiff, and meeting with Pan.¹⁷ In the meeting with Pan, he confirmed that he had a romantic interest in plaintiff, stated that he understood that his conduct had been inappropriate, and apologized for his actions.¹⁸ Mss. Cantrell and Tennent thereupon instructed Pan that he was to have no further personal communications with plaintiff, told him that he would be terminated if there were any further problems, and instructed him not to retaliate against plaintiff.¹⁹ TNS required Pan to participate in sexual harassment training, referred him for further training, and removed Pan from all supervisory and managerial responsibilities with respect to plaintiff.²⁰

In September 2005, Mss. Cantrell and Tennent met with plaintiff and informed her of the outcome of the investigation and the remedial actions that TNS had taken.²¹ Plaintiff confirmed that Pan had not initiated any contact with her following her complaint to TNS.²² According to the TNS officials, they advised her that she could proceed with a formal grievance if she was dissatisfied.²³ Plaintiff, however, states that Mss. Cantrell and Tennent did not explain what, if any, additional options she had.²⁴ This dispute as to whether Mss. Cantrell and Tennent advised plaintiff that she could proceed with a formal grievance is immaterial, however, as it is undisputed that plaintiff received a written copy of TNS's sexual harassment policy, which contained this information.²⁵

Three months later, plaintiff sent an e-mail to TNS in which she expressed dissatisfaction with the outcome of her complaint.²⁶ This was referred to the provost's office in accordance with TNS's grievance policy, and a vice provost tried to contact plaintiff to schedule a meeting pursuant to TNS's procedures. Plaintiff, however, did not respond. Rather, her attorney wrote to TNS, indicating that he was poised to sue, which terminated further internal proceedings at the school.²⁷

D. Pan's Monitoring of Plaintiff's Computer Use

Although Pan's communications with plaintiff stopped immediately once the TNS officials met with him, his interest in plaintiff did not. During discovery in this action, Pan produced "screen shots" that he had collected from monitoring plaintiff's use of TNS-owned computers while she was at work. This of course suggested that Pan had used a TNS-owned computer and the Internet for personal reasons in violation of TNS policy.²⁸ Plaintiff concedes, however, that neither she nor TNS was aware of Pan's unauthorized monitoring of her computer use.²⁹

E. Plaintiff's Claims and the Motion

The amended complaint asserted a single claim for sexual harassment under the New York City Human Rights Law ("NYCHRL") against both defendants.³⁰ Following the disclosure of Pan's unauthorized monitoring of plaintiff's computer usage, plaintiff amended to add a claim under the same statute for retaliation based on Pan's post-complaint monitoring.

TNS now moves for summary judgment dismissing the second amended complaint on the grounds that TNS is not vicariously liable for Pan's alleged sexual harassment and that plaintiff cannot establish a prima facie case of retaliation against TNS.

II. Discussion

A. Vicarious Liability for Sexual Harassment

This action is representative of an increasing volume of employment discrimination cases that are brought pursuant to one or both local New York anti-discrimination laws—the New York State Human Rights Law ("NYSHRL")³¹ and the NYCHRL—rather than Title VII of the Civil Rights Act of 1964 ("Title VII").³²

Beginning long ago, federal and state courts usually have treated Title VII and the local anti-discrimination laws, despite some differences in language and structure, as substantially co-extensive. As the Second Circuit has put it, "New York Courts examine claims under [the NYSHRL and the NYCHRL] with the same analytical lens as corresponding Title VII-based claims."³³ This has been true not only with respect to the substance of the conduct prohibited, but generally also with respect to the matter of employer liability for discriminatory acts of employees and other agents.³⁴ Accordingly, TNS maintains that the affirmative defense to employer sexual harassment liability created for Title VII cases in Faragher v. City of Boca Raton³⁵ and Burlington Industries, Inc. v. Ellerth³⁶ applies under the NYCHRL and that TNS has satisfied its requirements. Plaintiff, on the other hand, argues that Faragher-Ellerth does not control the employer liability question under the NYCHRL and, even if it did, that there is a genuine issue of material fact as to whether TNS has satisfied its requirements.

The question whether Faragher-Ellerth applies in NYCHRL cases, as will appear, is not free from doubt. In consequence, it is prudent first to consider whether TNS would be entitled to dismissal of the sexual harassment claim, assuming arguendo that Faragher-Ellerth does apply, and then to consider its applicability only if that proves essential to a determination of the motion.

1. TNS and Faragher-Ellerth

In Faragher and Ellerth, the Supreme Court held that an employer is not liable under Title VII for sexual harassment committed by a supervisory employee if it sustains the burden of proving that (1) no tangible employment action "such as discharge, demotion, or undesirable reassignment" was taken as part of the alleged harassment,³⁷ (2) "the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior,"³⁸ and (3) "the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise."³⁹

Plaintiff does not contend that any tangible employment action was taken against her.⁴⁰ Nor does she dispute TNS's conclusion—drawn from plaintiff's admitted failure to complain to TNS of Pan's allegedly unwanted attentions for about a year, followed by her admitted failure to file a grievance when she announced that she was dissatisfied with the outcome of the investigation and corrective action taken by Mss. Cantrell and Tennent—that she unreasonably failed to take advantage of corrective opportunities offered by TNS.⁴¹ It therefore is necessary to consider only plaintiff's contention that there are material issues of fact "concerning whether [TNS] disseminated or effectively implemented its anti-harassment policy" and therefore whether it took reasonable care to prevent sexual harassment.⁴²

Plaintiff's contention that TNS neither disseminated its anti-sexual harassment policy nor ensured that all employees underwent...