09-0611-cv
Zakrzewska v. The New School
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2008
(Submitted: June 16, 2009 Decided: June 22, 2010)
Docket No. 09-0611-cv
DOMINIKA ZAKRZEWSKA ,
Plaintiff-Appellee,
-v.-
THE NEW SCHOOL,
Defendant-Appellant,
Kwang-Wen Pan,
Defendant.
Before: WINTER, CABRANES, and HALL, Circuit Judges.
We certified to the New York Court of Appeals the question of whether the affirmative defense
to employer liability articulated in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), applies to sexual harassment and retaliation claims under
section 8-107 of the New York City Administrative Code. See Zakrzewska v. The New School, 574 F.3d 24
(2d Cir. 2009). The New York Court of Appeals has answered that question in the negative.
Accordingly, we affirm the January 26, 2009 order of the United States District Court for the Southern
District of New York (Lewis A. Kaplan, Judge) denying the motion for summary judgment of
defendant, The New School, and we remand the cause to the District Court for further proceedings.
Affirmed and remanded.
1
Thomas S. D’Antonio, Ward Norris Heller & Reidy, LLP,
Rochester, NY, for Defendant-Appellant.
Jason L. Solotaroff, Giscan Solotaroff Anderson & Stewart LLP,
New York, NY, for Plaintiff-Appellee.
PER CURIAM :
We previously certified to the New York Court of Appeals the question of whether the
affirmative defense to employer liability articulated in Faragher v. City of Boca Raton, 524 U.S. 775 (1998)
and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) applies to sexual harassment and retaliation
claims under New York City Administrative [Code] Section 8-107. See Zakrzewska v. The New School, 574
F.3d 24 (2d Cir. 2009). The New York Court of Appeals has answered our certified question in the
negative. We now review the January 26, 2009 order of the United States District Court for the
Southern District of New York (Lewis A. Kaplan, Judge) denying the motion for summary judgment of
defendant The New School (“the School”).1
BACKGROUND
The facts and procedural history of this case are set forth in detail in our earlier opinion in this
case, with which we assume the parties’ familiarity. See Zakrzewska, 574 F.3d 24. We recite here only
those facts pertinent to this opinion.
Plaintiff Dominika Zakrzewska sued her co-worker, defendant Kwang-Wen Pan, and her
former employer, defendant-appellant The New School (“the School”), alleging sexual harassment and
retaliation in violation of the New York City Human Rights Law (“NYCHRL”), which is codified in
part in the New York City Administrative Code, see N.Y.C. AD. C. § 8-107.
The School moved for summary judgment on both the harassment and retaliation claims. In its
motion for summary judgment, the School argued that summary judgment should be granted because
(1) the affirmative defense to employer liability for sexual harassment cases arising under Title VII set
1
We have jurisdiction to review this order under 28 U.S.C. § 1292(b).
2
forth in Faragher and Ellerth applies under the NYCHRL,2 (2) that the School satisfied the requirements
of the Faragher-Ellerth defense, and (3) with respect to the retaliation claim, even if the Faragher-Ellerth
defense does not apply, plaintiff failed to establish a prima facie case of retaliation.
The District Court concluded that the Faragher-Ellerth defense does not apply under the
NYCHRL and that there were questions of material fact as to whether Zakrzewska suffered retaliation.
Accordingly, the District Court denied the School’s motion for summary judgment on both the
harassment and retaliation claims. See Zakrzewska v. The New School, 598 F. Supp. 2d 426, 437-38
(S.D.N.Y. 2009). Recognizing that its conclusion that the Faragher-Ellerth defense does not apply under
the NYCHRL was “not free from doubt,” id. at 437, the District Court certified that question for
interlocutory appeal, pursuant to 28 U.S.C. § 1292(b).3 Id. at 437-38.
On appeal before our Court, we certified the same question—namely, whether the affirmative
defense set forth in Faragher and Ellerth applies under the NYCHRL—to the New York Court of
Appeals. See Zakrzewska, 574 F.3d at 28-29.
The New York Court of Appeals then answered our certified question in the negative
concluding that the Faragher-Ellerth defense does not apply in cases brought under the NYCHRL. See
Zakrzewska v. The New School, 2010 N.Y. LEXIS 632 (N.Y. 2010).
2
In our earlier opinion in this case, we quoted the District Court’s definition of the Faragher-
Ellerth defense:
In Faragher and Ellerth, the Supreme Court held that an employer is not liable under
Title VII for sexual harassment committed by a supervisory employee if it sustains
the burden of proving that (1) no tangible employment action “such as discharge,
demotion, or undesirable reassignment” was taken as part of the alleged harassment,
[Ellerth, 524 U.S. at 765,] (2) “the employer exercised reasonable care to prevent and
correct promptly any sexually harassing behavior,” [Faragher, 524 U.S. at 807,] and (3)
“the plaintiff employee unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the employer or to avoid harm otherwise[, id.]”
Zakrzewska, 574 F.3d at 26 (quoting Zakrzewska, 598 F. Supp. 2d at 432 (footnotes omitted)).
3
The District Court did not certify the question of whether plaintiff stated a prima facie claim
of retaliation, so we lack jurisdiction to consider it here.
3
DISCUSSION
In denying defendant’s motion for summary judgment, the District Court concluded that the
School was not entitled to summary judgment because the Faragher-Ellerth defense does not apply to
claims brought under the NYCHRL. The New York Court of Appeals has now confirmed that such a
defense does not apply under the NYCHRL. Accordingly, we conclude that the District Court did not
err in denying defendant’s motion for summary judgment.
CONCLUSION
For the reasons stated above, we affirm the January 26, 2009 order of the District Court
denying defendant’s motion for summary judgment, and we remand the cause to the District Court for
further proceedings.
4