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Court rejects employer’s attempt to invoke Faragher/Ellerth affirmative defense

November 20th, 2012  |  Deborah Hammonds

Allegations of sexual (mis)conduct at company Christmas party were sufficient to support HWE claim

An employee’s allegations that an assistant dean engaged in sexual conduct, including making physical advances toward her during the employer’s Christmas party, were sufficient to state a hostile work environment claim, ruled a federal district court in New York after deciding that the employer could not, at this stage of the litigation, rely on the Faragher/Ellerth affirmative defense to dismiss the claim (Shiner v State University of New York).

The employee filed suit under Title VII and New York state law against her employer and a former associate dean at the dental school, complaining that the associate dean subjected her to a hostile work environment. She claimed that during the annual department Christmas party in 2010, held at an off-site location four days before Christmas, the associate dean subjected her to lewd sexual comments and advances. For example, he grabbed her breasts, chased her around a table, inserted his tongue in her ear, and pinched her ribs when she refused to submit to his requests. The acts took place in front of the employee’s colleagues while another one of her supervisors laughed and cheered the associate dean’s behavior. The court found that, based upon Second Circuit precedent, the employee’s allegations, if true, were plainly sufficient to state a claim for hostile work environment harassment.

The employer argued that it was clear from the face of the complaint that it was exempt from liability based upon the Faragher/Ellerth affirmative defense. The employee challenged the employer’s assertion that the allegations in the complaint demonstrated that both elements of the affirmative defense had been satisfied. Noting that there was insufficient evidence to prove that the employer exercised reasonable care and was entitled to the affirmative defense as a matter of law, the court ruled that it did not need to reach the employee’s argument that the defense was inapplicable. Specifically, she contented that the associate dean was sufficiently high ranking in the university to be considered the employer’s proxy or alter ego.

When seeking to apply the Faragher/Ellerth affirmative defense, summary judgment is cautioned against unless “the evidence is so overwhelming that the jury could rationally reach no other result,” the court explained, drawing on Second Circuit jurisprudence. In this instance, the employer did not meet this high standard. In light of the allegations set forth in the complaint, which must be regarded as true, and without additional discovery and factual findings, the court concluded that the employer could not establish that it was entitled to the affirmative defense as a matter of law.

Specifically, the employee had alleged that when she received an invitation to the 2010 Christmas party, she told her supervisor that she did not want to attend because of the “verbal and sexual abuse” that had occurred at Christmas parties in years past. This allegation was sufficient to raise a question of whether the employee complained prior to the December 2010 party and whether the employer exercised reasonable care to promptly correct the sexually harassing conduct or prevent future conduct.

Furthermore, the employee alleged that the harassing conduct occurred in December, but it appeared that the employer failed to take any action until March. Without the benefit of additional details regarding when the employee complained to employee relations and what, if any, investigation took place in the meantime, the court could not evaluate the promptness and adequacy of the employer’s response. Moreover, it appeared that while some action was taken against the associate dean, the length of his suspension and outcome of the formal disciplinary proceeding initiated against him were not known.

Finally, the employee alleged that she also was harassed by another superior, that she had previously complained about him, and that no disciplinary action was taken against him. Without additional factual discovery, the court noted it was unknown if the second superior could be found to have contributed to a hostile work environment and what, if any, action the employer took to investigate or correct his behavior.

The court concluded that while the facts of this case may ultimately establish that the employer is exempt from liability based upon the Faragher/Ellerth affirmative defense, at this stage of the litigation, there simply was not enough information to evaluate the merits of the defense. The motion to dismiss was denied without prejudice with respect to the employer’s ability to assert the affirmative defense going forward in this matter.

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