that she had no problem with him and had not reported him for
sexual harassment. (Id.) According to D.A.O.R., this statement
reveals that Sowemimo was aware of complaint procedures and never
availed herself of them.
However, it is not clear from Sowemimo's written description of
her conversation with Islam whether she meant merely to deter him
from filing a disciplinary report, or whether her assurances to
him reflected that she had not, in fact, ever complained to
D.A.O.R. about Islam's harassment. The conversation also
contradicts Sowemimo's sworn deposition testimony that she
complained to Burret and Cabreja in August, 1995 at the main
office of D.A.O.R. that she was being harassed, and that she was
told to expect a meeting. No meeting followed, and D.A.O.R. took
no action to investigate Islam's actions.
Taking the evidence in a light most favorable to Sowemimo, the
court can not say that D.A.O.R. has met its burden in
establishing both elements of its affirmative defense for the
purposes of summary judgment. Given Sowemimo's sworn testimony,
triable issues of fact exist as to whether D.A.O.R. took
reasonable care in preventing and correcting sexual harassment in
its workplace following Sowemimo's alleged complaint in August,
1995. Thus, D.A.O.R.'s motion for summary judgment relating to
plaintiff's claim of sexual harassment under Title VII is denied.
2. D.A.O.R. liability under the HRL and NYCHRL
Courts have analyzed employer liability for sexual harassment
claims under the HRL and NYCHRL with reference to the
pre-Faragher/Ellerth Title VII standard. Prior to Faragher
and Ellerth, the Second Circuit required a Title VII plaintiff
to show "that a specific basis exists for imputing the conduct
that created the hostile environment to the employer" in order to
make out a prima facie case. See Ponticelli, 16 F. Supp.2d at
429-430 (quoting Van Zant v. KLM Royal Dutch Airlines,
80 F.3d 708, 715 (2d Cir. 1996)). An employer could be held liable for
the harassment perpetrated by one of its supervisors if: (a) the
supervisor was at a sufficiently high level in the company, or
(b) the supervisor used his or her actual or apparent authority
to further the harassment, or was otherwise aided in
accomplishing the harassment by the existence of the agency
relationship, or (c) the employer provided no reasonable avenue
for complaint, or (d) the employer knew (or should have known) of
the harassment but unreasonably failed to stop it. See Torres v.
Pisano, 116 F.3d 625 (2d Cir. 1997) (citations omitted).
HRL and NYCHRL claims have followed this standard, although New
York courts have stated that "an employer cannot be held liable
for an employee's discriminatory act unless the employer became a
party to it by encouraging, condoning, or approving it." State
Div. of Human Rights v. St. Elizabeth's Hosp., 66 N.Y.2d 684,
687, 496 N.Y.S.2d 411, 487 N.E.2d 268 (1985) (citations omitted).
An employer's calculated inaction in response to
discriminatory conduct may, as readily as affirmative
action, indicate condonation. An employer may
disprove this condonation by a showing that the
employer reasonably investigated a complaint of
discriminatory conduct and took corrective action.
Thus, employer liability under the HRL is very
similar to the fourth prong of the Torres test,
except that actual notice, rather than constructive
notice, appears to be required under the HRL.
Ponticelli, 16 F. Supp.2d at 433 (internal citations omitted).