advances, which is all that is alleged here by way of "protected activity." If it were otherwise, every harassment claim would automatically state a retaliation claim as well.
Indeed, in this case, the merger of the two claims would be complete, for plaintiff further concedes that no one at Pathmark beyond the alleged harasser knew of plaintiff's alleged "protected activity" of refusing the harasser's sexual advances. Because an employee who sexually harasses a fellow employee would have no incentive to inform the employer of his actions, the knowledge of the harasser cannot fairly be imputed to his employer. Cf. United States v. 141st St. Corp. by Hersh, 911 F.2d 870, 876 (2d Cir. 1990), cert. denied, 498 U.S. 1109, 112 L. Ed. 2d 1099, 111 S. Ct. 1017 (1991) (knowledge of agent is not imputed to principal where agent acts adversely to interests of principal).
Here, the undisputed record is that defendant Pathmark did not mistreat, demote, fire, discipline, or punish plaintiff in any way. The sole act of "retaliation" that plaintiff alleges is that her immediate (and low-level) supervisor, after being rebuffed in his unwanted sexual advances, "forced Plaintiff to move material which was beyond her physical capacities and caused her to become injured." Plaintiff's Supplemental Memorandum, at 3. Even though Pathmark had a strict policy against any form of sexual harassment and displayed posters throughout the store advertising an "800" phone number that harassed employees could call, plaintiff took no action to bring her supervisor's actions to the company's attention. Nor, for that matter, did she suffer any further mistreatment by him. While these factors alone do not insulate an employer from all liability (and, indeed, plaintiff has made the minimal showing necessary to survive summary judgment on her harassment claim), in this context plaintiff's modes allegations can hardly suffice to support a retaliation claim.
Accordingly, the Court hereby grants summary judgment on plaintiff's claim of unlawful retaliation. As previously ordered, the jury for the trial of the remaining claim of harassment will be selected on November 4, 1996, and the case will proceed to trial shortly thereafter.
JED. S. RAKOFF, U.S.D.J.
Dated: White Plains, New York
October 21, 1996