United States Second Circuit

In an employment discrimination action based on claims that plaintiff suffered a hostile work environment, age discrimination, and retaliation for complaints of race and age discrimination, summary judgment for defendant is vacated and the matter remanded where: 1) an employer is not, as a matter of law, entitled to the Faragher/Ellerth affirmative defense simply because an employer's sexual harassment policy provides that the plaintiff could have complained to other persons as well as the alleged harasser; and 2) thus, the employer in this case was not entitled to the Faragher/Ellerth affirmative defense as a matter of law, and it was necessary to look to the facts and circumstances to determine whether, by not pursuing other avenues seemingly provided in defendant's sexual harassment policy, plaintiff unreasonably failed to take advantage of the employer's preventative measures.

Appellate Information

• Argued 01/21/2009
• Decided 02/19/2010
• Published 02/19/2010

Judges

• CALABRESI, Circuit Judge:, Before WALKER, CALABRESI, WESLEY, Circuit Judges.

Court

• United States Second Circuit

Counsel

• For Appellant:
  
• Josephine A. Greco, Kevin P. Wicka, Offerman, Cassano, Greco, Slisz & Adams, LLP, Buffalo, N.Y., for Plaintiff-Appellant.


• For Appellees:
  
• Alison N. Davis, Little Mendelson, P.C., Washington, D.C., for Defendant-Appellee.