The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
Plaintiff moves for reconsideration of that portion of the February 25, 2011 Decision and Order [dkt. # 84] that dismissed her hostile work environment claims against the Village of Cooperstown and Defendant Nichols. See Motion, dkt. # 89. Plaintiff contends that there is record evidence creating a question of fact as to when she disclosed to a supervisor the sexual harassment that she was subjected, thereby rendering infirm the decision to dismiss these claims against the Village of Cooperstown on the basis of the Faragher/Ellerth defense and against Nichols on the basis of qualified immunity. Plaintiff argues in the alternative that if the Faragher/Ellerth defense applies, the Court erred in applying it to the New York Human Rights Law ("NYHRL") hostile work environment/sexual harassment claims. Id. *fn1 Defendants have opposed the motion. Dkt. # 100.
In addressing the Faragher/Ellerth defense, the Court looked to the parties' Local Rule 7.1(a)(3) statements and the record evidence cited therein to determine when and to whom Plaintiff reported the alleged course of sexual harassment. See Plf. Resp. L.R. 7.1(a)(3) Stat., ¶ 2; *fn2 see also Gilbert Dep., pp. 32-33; Gilbert Aff. ¶ 13. Because the record citations may have included references to complaints about other conduct by Fassett that Plaintiff did not like, see Gilbert Dep. pp. 32-33; *fn3 Nichols Dep. pp. 41-42, *fn4 the Court took the addition step of examining the evidence cited in the parties' memoranda of law. *fn5 This additional evidence left unanswered the question of when Plaintiff complained about the alleged sexual harassment, see e.g. Dec. 16, 2008 N.Y. Gen. Mun. L. § 50(h) hearing trans. pp. 78-80; *fn6 Nichols Dep. pp. 33-37, *fn7 but confirmed that on either of the two possible dates of disclosure, Plaintiff instructed Nichols to take no action relative to her complaint. See Feb. 25, 2011 Dec. & Ord. pp. 5 - 7. The evidence also indicated that, on either date, Nichols took prompt remedial action in the nature of, inter alia , scheduling Plaintiff and Fassett to different shifts. Id.
Plaintiff now cites record evidence that, when construed in the light most favorable to her, supports her contention that she disclosed the sexually harassing conduct to Nichols on at least three occasions. *fn8
Because there may have been a disclosure of sexually harassing conduct
on a date which did not result in prompt remedial action, a question
of fact exists as to whether Defendants have satisfied their burden of
establishing the Faragher/Ellerth defense. See Gorzynski v. Jetblue
Airways Corp., 596 F. 3d 93, 103 (2d Cir. 2010); *fn9
see also Sassaman v. Gamache, 566 F.3d 307, 314--315 (2d
Cir. 2009). *fn10 This compels against the
issuance of summary judgment on the basis of this defense. See Saaidi
v. CFAS, LLC, 740 F. Supp.2d 357, 367 (N.D.N.Y. 2010); Smith v. Town
of Hempstead Dept. of Sanitation Sanitary Dist. No. 2, --- F. Supp.2d
----, 2011 WL 2837504, at * 7 (E.D.N.Y. 2011); Prince v. Madison
Square Garden, 427 F. Supp.2d 372, 382 (S.D.N.Y. 2006). Likewise,
because a question of fact exists as to the action Nichols took in
response to each of Plaintiff's complaints of sexual harassment,
Nichols's claim for qualified immunity must be denied at this time.
Accordingly, those portions of the February 25, 2011 Decision and Order that dismissed (1) the Title VII and NYHRL sexual harassment/hostile work environment claims against the Village of Cooperstown; and (2) the § 1983 Equal Protection sexual harassment/hostile work environment claim against Nichols are vacated . The Village of Cooperstown may renew its Faragher/Ellerth defense at the time of trial, including on the NYHRL claim. See Edrisse v. Marriott Intern., Inc., 757 F. Supp. 2d 381, 388-89 (S.D.N.Y. 2010); *fn11 see also Barnum v. New York City Transit Authority, 878 N.Y.S.2d 454, 455-56 (2 nd Dept. 2009). *fn12 Nichols may renew her claim of qualified immunity at the time of trial.
For the reasons discussed above, Plaintiff's motion for reconsideration [dkt. # 84] is GRANTED IN PART and DENIED IN PART . The motion is granted inasmuch as those portions of the February 25, 2011 Decision and Order that dismissed (1) the Title VII and NY Human Rights Law sexual harassment/hostile work environment claims against the Village of Cooperstown; and (2) the § 1983 Equal Protection sexual ...