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Zakrzewska v. New School

January 26, 2009


The opinion of the court was delivered by: 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.*fn1 The policy was accessible on the TNS web site and published in its student handbook, which was given to students during the enrollment process.*fn2 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.*fn3 The policy was sent also to staff.*fn4 In addition, TNS had guidelines for dealing with issues of sexual harassment that provided a multi-step procedure for dealing with sexual harassment complaints.*fn5

B. The Relationship Between Zakrzewska and Pan

Plantiff enrolled as a freshman at TNS in the fall of 2002.*fn6 In April 2003, she took a part-time job in TNS's Print Output Center, which was located within its Academic Computing Center.*fn7 Pan was employed in the Computer Center, having worked there since 1998.*fn8

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.*fn9 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."*fn10 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 )."*fn11 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.*fn12 In May 2005, however, she complained to TNS that Pan had sexually harassed her.*fn13 When notified by plaintiff of the alleged harassment, Carol Cantrell scheduled a meeting with plaintiff and Keila Tennent, TNS's associate general counsel.*fn14 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.*fn15

Ms. Cantrell provided plaintiff with a copy of the TNS's sexual harassment policy at the meeting.*fn16

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.*fn17 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.*fn18 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.*fn19 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.*fn20

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.*fn21 Plaintiff confirmed that Pan had not initiated any contact with her following her complaint to TNS.*fn22

According to the TNS officials, they advised her that she could proceed with a formal grievance if she was dissatisfied.*fn23 Plaintiff, however, states that Mss. Cantrell and Tennent did not explain what, if any, additional options she had.*fn24 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.*fn25

Three months later, plaintiff sent an e-mail to TNS in which she expressed dissatisfaction with the outcome of her complaint.*fn26 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.*fn27

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.*fn28 Plaintiff ...

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