The opinion of the court was delivered by: Denise Cote, District Judge:
Plaintiff Tracy Joyner, a New York City Correction officer, brings this action against Correction Captain Michael Johnson ("Johnson") and the City of New York alleging employment discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.; the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290 et seq.; and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin Code § 8--101 et seq. Specifically, the plaintiff alleges that she has been subjected to a hostile work environment on account of the repeated sexual advances of Captain Johnson, her supervisor.
On June 22, 2012, the defendants moved for summary judgment with respect the plaintiff's discrimination and retaliation claims. The plaintiff opposed the motion, which became fully submitted on July 23. For the reasons that follow, the defendants' motion for summary judgment is granted in part.
Summary judgment may not be granted unless all of the submissions taken together "show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination, the court must view all facts "in the light most favorable" to the nonmoving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d Cir. 2008).
I. Hostile Work Environment
A. The Challenged Conduct
Claims of employment discrimination under the NYSHRL and the NYCHRL are generally analyzed under the same substantive standards that govern claims under Title VII of the Civil Rights Act of 1964, Leibowitz v. Cornell Univ., 584 F.3d 487, 498 & n.1 (2d Cir. 2009), although claims under the NYCHLR "must be reviewed independently from and more liberally than their federal and state counterparts." Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d Cir. 2009). Thus, in order to prevail on her hostile work environment claim, the plaintiff must show that "the workplace [was] permeated with discriminatory intimidation, ridicule, and insult that [was] sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive working environment." Kaytor v. Electric Boat Corp., 609 F.3d 537, 546 (2d Cir. 2010) (citation and emphasis omitted). In determining whether a working environment qualifies as "abusive," courts look to "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 547 (citation and emphasis omitted). The "effect [of the workplace environment] on the employee's psychological well-being" may also be considered. Id. (citation omitted).
With respect to the merits of the plaintiff's hostile work environment claim, defendants' principal argument in favor of summary judgment is that there is insufficient evidence from which a jury could conclude that the plaintiff's workplace was "permeated with discriminatory intimidation, ridicule, and insult that [was] sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment." Id. at 546 (citation and emphasis omitted). It is true, as defendants note, that "[i]solated incidents generally will not suffice to establish a hostile work environment." Id. at 547. But "the question of whether a work environment is sufficiently hostile to violate Title VII is one of fact . . . [, and t]he interpretation of ambiguous conduct is an issue for the jury." Redd v. New York Div. of Parole, 678 F.3d 166, 178 (2d Cir. 2012) (citation omitted).
Here, viewing the evidence in the light most favorable to the plaintiff, a reasonable jury could conclude that the plaintiff experienced abusive conduct that was sufficiently pervasive to alter the conditions of her employment. In her deposition, the plaintiff recounted a series of uncomfortable encounters with Captain Johnson beginning in December 2008 and continuing through late 2009 that could reasonably be construed as gender based. Specifically, plaintiff described numerous occasions on which Captain Johnson attempted to kiss her, blocked her from exiting spaces, or physically interacted with her in overly familiar ways. The plaintiff also testified that Captain Johnson twice took a beverage from her hand and drank from it, saying on one occasion, "I don't drink from just anybody, baby girl." Captain Johnson also made numerous comments about the plaintiff's body and her attire that could reasonably be construed as sexual. On one occasion, he allegedly knocked on the door to the locker room, calling to the plaintiff by name; when she exited, he explained that he wanted to see what she was wearing and how she acted when she was by herself. Most egregiously, on December 28, 2009, Johnson allegedly said to the plaintiff, "Why don't you let me make love to you four, five times so I can get it out of my system. Stop acting like you don't like me." A reasonable jury could well conclude that this conduct created a hostile work environment for the plaintiff.
Defendants assert, however, that even if the conduct at issue is sufficient to establish a hostile work environment, they are entitled to summary judgment on plaintiff's Title VII claim against the City pursuant to the affirmative defense set out in Burlington Industries v. Ellerth, 524 U.S. 742, 761 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). Although an employer is presumptively liable for its supervisory employees' discriminatory conduct, Ellerth and Faragher establish an affirmative defense where the offending employee did not take any tangible employment action in connection with the harassment. Faragher, 524 U.S. at 807. To obtain the benefit of the Ellerth/Faragher affirmative defense, the employer must show "(a) that [it] exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Ellerth, 524 U.S. at 765. The defendant bears the burden of persuasion on both elements, but, with respect to the second one, if the defendant can demonstrate that the plaintiff has completely failed to avail herself of the complaint procedure, the burden of production shifts to the employee to come forward with one or more reasons why the employee did not make use of the procedures. The employer may rely upon the absence or inadequacy of such a justification in carrying its ultimate burden of persuasion.
Leopold v. Baccarat, Inc., 239 F.3d 243, 246 (2d Cir. 2001).
It is undisputed that the Department of Correction maintains a policy against sexual harassment and provides a process through which employees can complain about violations of that policy. The contested issue is whether the plaintiff acted "unreasonably" in failing to take advantage of that system until January 27, 2010, when she finally ...