07-3503-cv
Duch v. Jakubek



                                      UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                                       August Term, 2008

(Argued: December 9, 2008                                                               Decided: December 4, 2009)

                                                     Docket No. 07-3503-cv

KAREN DUCH ,

                              Plaintiff-Appellant,

                                        v.

LIEUTENANT EDWARD JAKUBEK , in his official capacity,
NEW YORK STATE OFFICE OF COURT ADMINISTRATION , and
THE STATE OF NEW YORK ,

                              Defendants-Appellees,

COURT OFFICER BRIAN KOHN , individually and in his official capacity,

                              Defendant.*

Before: LEVAL, CABRANES, and HALL, Circuit Judges.

         Plaintiff-appellant appeals from a judgment of the United States District Court for the Southern

District of New York (Loretta A. Preska, Judge) granting summary judgment in favor of defendants-

appellees and dismissing her claims of sexual harassment brought pursuant to Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq., the New York State Human Rights Law, N.Y. Exec. Law

§ 290 et seq., and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. Although

we agree with the District Court that plaintiff was not deprived of all reasonable avenues of complaint,


         *
             The Clerk of Court is directed to amend the official caption to conform to the listing of the parties stated
above.

                                                                 1
we hold that a reasonable jury could conclude that the employer defendants (1) knew, or in the exercise

of reasonable care should have known, of the harassment directed at plaintiff and (2) failed to take

appropriate remedial action.

        Accordingly, we affirm the District Court insofar as it held that (1) plaintiff was not deprived of

all reasonable avenues of complaint and (2) defendants cannot be liable based on information that

plaintiff requested be kept confidential but which was conveyed to a co-worker. We vacate the order

of the District Court insofar as it (1) held that no reasonable jury could find that plaintiff’s supervisor

knew or should have known of the harassment directed at plaintiff, (2) held that no reasonable jury

could find that defendants failed to take appropriate remedial action, and (3) denied plainitff’s motion

to amend the complaint as futile. We remand the cause for further proceedings consistent with this

opinion.

                                         MATHEW PAULOSE , JR ., Koehler & Isaacs LLP, New York, NY,
                                              for Plaintiff-Appellant.

                                         PATRICK J. WALSH , Assistant Solicitor General (Andrew M.
                                               Cuomo, Attorney General of the State of New York, on
                                               the brief, Barbara D. Underwood, Solicitor General, Peter
                                               Karanjia, Special Counsel to the Solicitor General, of
                                               counsel), Office of the Attorney General for the State of
                                               New York, New York, NY, for Defendants-Appellees.

                                         Anjana Samant, Outten & Golden LLP, New York, NY (Stefano
                                                G. Moscato, National Employment Lawyers Association,
                                                San Francisco, CA, on the brief), for Amicus Curiae National
                                                Employment Lawyers Association in support of Plaintiff-
                                                Appellant.


JOSÉ A. CABRANES, Circuit Judge:

        Plaintiff-appellant Karen Duch (“plaintiff” or “Duch”), a former court officer and employee of

the New York State Office of Court Administration (“OCA”), appeals from the August 6, 2007

judgment of the United States District Court for the Southern District of New York (Loretta A. Preska,

                                                      2
Judge) insofar as the District Court, in a August 2, 2007 memorandum and order, granted summary

judgment in favor of defendants-appellants Lieutenant Edward Jakubek (“Jakubek”), OCA, and the

State of New York (jointly, “defendants” or “employer defendants”) on plaintiff’s employment

discrimination claims and denied plaintiff’s motion to amend the complaint. Plaintiff brought the

underlying action in January 2004, claiming that she had been sexually harassed by a fellow court

officer, defendant Brian Kohn (“Kohn”), over a period of several months in 2001. Plaintiff claimed

that employer defendants failed properly to investigate the harassment and failed to prevent further

harassment, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 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.

        The District Court granted summary judgment for defendants upon concluding that Kohn’s

harassment of plaintiff could not be imputed to defendants. Duch v. Kohn, No. 04 Civ. 109, 2007 WL

2230174 (S.D.N.Y. Aug. 3, 2007). Although we agree with the District Court that plaintiff was not

deprived of all reasonable avenues of complaint, we hold that a reasonable jury could conclude that

defendants (1) knew, or in the exercise of reasonable care should have known, of the harassment

directed at plaintiff and (2) failed to take appropriate remedial action. Accordingly, we vacate the

judgment of the District Court and remand the cause for further proceedings consistent with this

opinion.

                                                BACKGROUND1

        During the time period relevant to this case, Duch was employed as a court officer by the New

York State Unified Court System (“UCS”). Duch, 2007 WL 2230174, at *1. OCA is the administrative

branch of the UCS. Id. On August 12, 1999, she was assigned to Midtown Community Court


        1
          The facts that follow are taken largely from the District Court’s August 3, 2007 Memorandum and Order and
are undisputed unless otherwise noted. See Duch, 2007 WL 2230174, at *1 n.2.
                                                           3
(“MCC”). Id. The personnel at the MCC consisted of a judge, a lieutenant, a sergeant, approximately

twelve court officers, and four court clerks. Id. One of the court officers, Rosemary Christiano, was

also the Equal Employment Opportunity (“EEO”) Liaison at the MCC. Id. Other personnel of note

included defendant Jakubek, who was the highest-ranking court officer at the MCC, and Chief Court

Clerk Don Vasti (“Vasti”), who was the highest-ranking administrative official at the MCC. Id. During

the relevant time period Jakubek was supervisor to both Duch and defendant Kohn.

        In May 2001, Kohn began working at the MCA as a court officer—in the same position and

rank as Duch. Id. On September 25, 2001, Duch and Kohn engaged in a consensual sexual encounter

at Duch’s apartment (this encounter did not involve intercourse). Id. According to Duch, she

informed Kohn the next day that the encounter had been a “mistake” and that she did not want to

pursue further relations with him. J.A. 347. Following that encounter and continuing until January

2002, Kohn allegedly made a series of unwanted sexual advances towards Duch. Duch, 2007 WL

2230174, at *2. These allegedly included physical contact, sexually graphic language, and physical

gestures. Id.

        In October 2001, after learning that she was scheduled to work alone with Kohn on an

upcoming Saturday, Duch approached Jakubek and asked him for the day off. She did not inform

Jakubek at that time that Kohn was reason she sought to change her schedule. Later that same day,

Jakubek called Duch back into his office and said that he had heard that she wanted to change her

schedule to avoid working with Kohn. Jakubek explained that he had spoken to Kohn and had asked

him directly why Duch would feel uncomfortable working with him and that Kohn had responded,

“well, maybe I did something or said something that I should not have.” J.A. 81. According to Duch,

Jakubek said that he had told Kohn to “cut it out, to grow up.” Id. Jakubek then asked Duch if she

had a problem working with Kohn and, because (Kohn asserts) she was becoming emotional at this


                                                   4
point in the conversation and was trying to maintain her composure, she responded by saying, “I can’t

talk about it.” Id. at 82. Duch claims that Jakubek replied, “That’s good because I don’t want to know

what happened,” and then laughed. Id. Following this exchange, Jakubek offered to change Duch’s

schedule so she would not have to work alone at night with Kohn, id., and thereafter did not schedule

Duch to work with Kohn alone. Duch, 2007 WL 2230174, at *2.

        Later in October 2001, Duch spoke with Christiano about Kohn’s harassment—the first of

several conversations on the subject. Id. Duch admits that, prior to this occasion, she was unaware

that Christiano was an EEO Liaison. Id. However, during their first conversation about the alleged

harassment, Christiano asked Duch if she was speaking to her “as a friend” or because Christiano was

an EEO Liaison. Id. Duch responded, “I think I’m telling you as a friend.” Id. According to

Christiano, she asked Duch whether Duch wanted her to report Kohn’s behavior and Duch responded

“absolutely not.” Id. Duch nevertheless maintains that she told Christiano of the harassment, “hoping

that Christiano would stop or report the conduct.” Id. Throughout this time, Christiano did not report

the harassment to anyone. Instead, Christiano allegedly gave Duch inappropriate advice, including

asking why Duch “didn’t . . . just grab [Kohn] and hurt him.” J.A. 327.

        Duch claims that, during the months that followed, Kohn continued to harass her and she

became seriously ill and started avoiding work. Specifically, Duch claims that she became depressed,

stopped eating, and experienced suicidal ideations. She also cut and dyed her hair in order to make

herself less attractive.

        In December 2001, court officer David Joseph replaced Christiano as EEO Liaison. Duch,

2007 WL 2230174, at *2. Within a few days of his becoming EEO Liaison, Duch came to Joseph to

inform him that she wanted to file a formal complaint about Kohn’s conduct. Because he understood

that he was “supposed to go through the chief clerk,” Joseph contacted Vasti to arrange a meeting for


                                                   5
Duch. J.A. 418.

       On January 8, 2002, Duch spoke with Vasti about Kohn’s alleged conduct. Duch, 2007 WL

2230174, at *3. On January 11, 2002, she filed a claim of discriminatory treatment with the OCA’s

Office of the Special Inspector General for Bias Matters. Id. That day, the Special Inspector General

began an investigation into Duch’s complaint, which came to include interviews of twenty individuals

and an administrative hearing. Id. On the basis of the investigation, disciplinary charges were brought

against Kohn. Id. All charges against Kohn were eventually dismissed, however, because Duch failed

to submit to cross-examination. Id. Duch claims that the reason she did not submit to cross-

examination is that she was medically unfit to testify at that time. Id. Although the parties do not agree

on the precise date or terms of Duch’s departure, it is undisputed that she ceased to work for the UCS

in December 2002. Id.

       On January 7, 2004, Duch commenced this action, alleging that Kohn, Jakubek, OCA, and the

State of New York had violated Title VII, as well as the NYSHRL and the NYCHRL, by creating a

hostile work environment. In an August 3, 2007 Memorandum and Order, the District Court

dismissed Duch’s claims under the NYSHRL and the NYCHRL as barred by the Eleventh

Amendment, and denied as futile Duch’s motion to amend her complaint to assert a claim against

Jakubek in his individual capacity under the NYSHRL and the NYCHRL. Duch, 2007 WL 2230174, at

*4, *12. As noted above, the District Court granted summary judgment in defendants’ favor on Duch’s

Title VII claims on the grounds that (1) the OCA provided a reasonable avenue of complaint to its

employees, (2) no reasonable fact-finder could conclude that employer defendants had actual or

constructive knowledge of the alleged harassment, and (3) even assuming that employer defendants did

know or should have known of the alleged harassment, their response was reasonable. Id. at *6-11.

The District Court also dismissed Duch’s Title VII claim against Kohn, declined to exercise pendent


                                                    6
jurisdiction over the state law claims against him, and denied Duch’s cross motion for partial summary

judgment. Id. at *13. Final judgment was entered on August 6, 2007. This timely appeal followed.1

                                                     DISCUSSION

         We review de novo an order granting summary judgment. See, e.g., Miller v. Wolpoff & Abramson,

L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). Summary judgment is appropriate only if “there is no genuine

issue as to any material fact” and the moving party is “entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(c).

I.       Title VII Hostile Work Environment

         In order to prevail on a hostile work environment claim, a plaintiff must make two showings:

(1) that “the harassment was sufficiently severe or pervasive to alter the conditions of the victim’s

employment and create an abusive working environment” and (2) that there is a “specific basis for

imputing the conduct creating the hostile work environment to the employer.” Feingold v. New York,

366 F.3d 138, 149-50 (2d Cir. 2004) (internal quotation marks omitted).

         A.       Abusive Working Environment

         “Proving the existence of a hostile work environment involves both objective and subjective

elements.” Id. at 150 (internal quotation marks omitted). Specifically, a plaintiff must show that the

misconduct was “‘severe or pervasive enough to create an objectively hostile or abusive work

environment,’ and the victim must also subjectively perceive that environment to be abusive.” Id.

(quoting Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002)).



         1
           On appeal Duch challenges only the District Court’s dismissal of her Title VII claims against the employer
defendants and its denial of her motion to amend the complaint to add state law claims against Jakubek in his individual
capacity. Although Duch’s notice of appeal states that she is appealing “each and every part” of the District Court’s
judgment, J.A. 485, she is no longer pursuing on appeal the dismissal of claims against Kohn, see Appellant’s Br. 2 n.1.
Furthermore, Duch’s opening brief raises no objection to the District Court’s dismissal of state law claims asserted
against the employer defendants. See Appellant’s Br. 2-3. Accordingly, we conclude that she has waived those claims
and we confine our review to the only remaining issues— namely, whether the District Court erred in granting summary
judgment on her Title VII claims and in denying her motion to amend the complaint.
                                                             7
        Because defendants did not seek, nor did the District Court grant, summary judgment on this

ground, we do not address it further. See Duch, 2007 WL 2230174, at *5 (“The Court declines to

address whether Plaintiff has established the first element of a hostile work environment claim because,

for the reasons discussed below, the claim fails as a matter of law on the second element.”).

        B.      Imputing the Conduct to the Employer

        At issue on this appeal is whether Duch can impute the conduct that created the hostile work

environment to her employer. In a situation such as this, “when the harassment is attributable to a co-

worker, rather than a supervisor, . . . the employer will be held liable only for its own negligence.”

Distasio v. Perkin Elmer Corp., 157 F.3d 55, 63 (2d Cir. 1998). Accordingly, Duch must demonstrate that

her employer “failed to provide a reasonable avenue for complaint” or that “it knew, or in the exercise

of reasonable care should have known, about the harassment yet failed to take appropriate remedial

action.” Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir. 2000) (internal quotation marks omitted).

                1.      Reasonable Avenue of Complaint

        The District Court concluded that “no reasonable fact finder could conclude that the Employer

Defendants failed to provide Plaintiff with a reasonable avenue of complaint.” Duch, 2007 WL 223017,

at *6. We agree.

        Duch argues that the District Court improperly focused on the fact that OCA had a sexual

harassment policy in place and that Duch had received a booklet on sexual harassment. See id.

According to Duch, the District Court failed to consider whether EEO Liaison Christiano—the avenue

of complaint that Duch chose to pursue—was inadequate because of her alleged lack of training.

Christiano testified that “[w]hen the time came that I was supposed to go for the training[,] I couldn’t

go because we were short of officers and I just couldn’t go, so I never got the training.” J.A. 404.

Moreover, according to Duch, in response to her complaints, Christiano inappropriately inquired why


                                                     8
Duch “didn’t . . . just grab [Kohn] and hurt him.” J.A. 327.

        Even assuming that Christiano’s response rendered her an inadequate avenue for complaint, the

relevant inquiry is not whether a particular avenue of complaint was effectively blocked but, rather,

whether defendants “provided no reasonable avenue of complaint.” See Distasio, 157 F.3d at 63

(emphasis added) (quoting Murray v. N.Y. Univ. College of Dentistry, 57 F.3d 243, 249 (2d Cir. 1995)); see

also Howley, 217 F.3d at 154 (explaining that employers must “provide a reasonable avenue of

complaint” (emphasis added)). As Duch herself acknowledges in her brief, according to the Deputy

Director of Human Resources at OCA, a victim of discriminatory conduct could seek assistance from

at least five different sources in addition to the EEO Office (recently renamed the Workforce Diversity

Office), including (1) the Inspector General’s Office, (2) an Anti-Discrimination Panel member, (3) a

“supervisor,” (4) “someone in charge,” and (5) a representative of the Work Life Assistance Program.

Appellant’s Br. 15. Accordingly, regardless of Christiano’s response, OCA provided numerous

alternative avenues of complaint that Duch could, and eventually did, pursue.

        We therefore conclude that the District Court did not err in holding that no reasonable jury

could conclude that defendants failed to provide Duch with a reasonable avenue of complaint.

                2.      Knowledge and Failure to Act

        Despite offering a reasonable avenue of complaint to plaintiff, employer defendants can still be

held liable if plaintiff can show that they “knew, or in the exercise of reasonable care should have

known, about the harassment yet failed to take appropriate remedial action.” Howley, 217 F.3d at 154

(internal quotation marks omitted). This standard requires a plaintiff to show that (1) someone had actual

or constructive knowledge of the harassment, (2) the knowledge of this individual can be imputed to

the employer, and (3) the employer’s response, in light of that knowledge, was unreasonable. With

respect to imputing the knowledge of employees to an employer, we have explained that


                                                     9
        [a]n official’s actual or constructive knowledge of harassment will be imputed to the
        employer when principles of agency law so dictate. That will be the case when a) the
        official is at a sufficiently high level in the company’s management hierarchy to
        qualify as a proxy for the company, or b) the official is charged with a duty to act on
        the knowledge and stop the harassment, or c) the official is charged with a duty to
        inform the company of the harassment.

Torres v. Pisano, 116 F.3d 625, 636-37 (2d Cir. 1997) (internal citations and footnote omitted). For non-

supervisory co-workers who “lack[ ] authority to counsel, investigate, suspend, or fire the accused

harasser . . . the co-worker’s inaction does not spark employer liability unless that co-worker has an official or

strong de facto duty to act as a conduit to management for complaints about work conditions.” Id. (quoting Lamb v.

Household Credit Servs., 956 F. Supp. 1511, 1517 (N.D. Cal. 1997)).

        Here, Duch seeks to impute knowledge of Kohn’s harassment to her employer based on the

alleged knowledge of two individuals: Christiano and Jakubek. We review the evidence with respect to

each below.

                          a.       Christiano

        It is clear from the record that Christiano had actual knowledge of Kohn’s harassment of Duch.

As a co-worker without supervisory authority, however, Christiano’s knowledge can be imputed to her

employer only if she had “an official or strong de facto duty to act as a conduit to management for

complaints about work conditions.” See id. at 637 (emphasis omitted). However, we need not decide

whether Christiano had an official or de facto duty to convey Duch’s complaints to management. Even

assuming that as EEO Liaison Christiano had such a duty, Duch cannot satisfy the final requirement

under Torres: that Christiano’s response, in light of her knowledge, was unreasonable. See id. at 638-39

(holding that plaintiff’s supervisor did not act unreasonably by honoring plaintiff’s request to keep

complaints of harassment confidential).

        Although Duch testified that she told Christiano about Kohn’s harassment “hoping that

Christiano would stop or report the conduct,” 2007 WL 2230174, at *2 (emphasis removed),

                                                         10
Christiano’s uncontradicted testimony was as follows: “I said do you want me to tell [Jakubek] and [Duch]

said absolutely not,” J.A. 165 (emphasis added).2 We must therefore determine whether Christiano acted

reasonably by keeping that information confidential, notwithstanding Duch’s unspoken expectations.

         In Torres v. Pisano we were presented with nearly identical circumstances and held that a

supervisor did not breach his duty to remedy harassment by honoring an employee’s request to keep

her complaint confidential. 116 F.3d at 638-39. We explained that

         the law will not presume in every case that harassed members of Title VII’s
         protected classes do not know what is best for themselves and cannot make
         reasonable decisions to delay—at least for a time—pursuing harassment claims,
         perhaps for privacy or emotional reasons, until they are ready to do so.

Id. at 639. We also noted, however, that this “is not a question that we can answer categorically” and

that “[t]here is certainly a point at which harassment becomes so severe that a reasonable employer

simply cannot stand by, even if requested to do so by a terrified employee.” Id.

         Duch argues that the conduct to which she was allegedly subjected passes that “point” at which

an employer is compelled to act regardless of the expressed wishes of the harassed employee. We

disagree. Although Duch testified that she told Christiano about most incidents involving Kohn, and

although the harassment was allegedly causing serious harm to plaintiff—even leading her to

contemplate suicide—there is no evidence that Christiano was aware of the psychological toll that

Kohn’s harassment was allegedly inflicting on Duch. See, e.g., J.A. 409 (“I didn’t feel Karen [Duch] was

threatened whatsoever. She was very adamant that she was able to handle this herself. I believe that

she could.”); see also Torres, 116 F.3d at 639 (finding defendant employer response was reasonable where

the victim’s complaints “did not come close to conveying the full extent of the abuse” to defendant).



         2
          Duch asserts that the District Court erred in relying on Christiano’s testimony because Duch never admitted
to making the statement in question. Appellant’s Br. 21 n.5. The critical point, however, is that she has not presented
any evidence contradicting the evidence put forth by defendants. See Fed. R. Civ. P. 56(e)(2) (explaining that a party
opposing summary judgment must “set out specific facts showing a genuine issue for trial”).
                                                             11
Based on the evidence in the record, no reasonable jury could conclude that Christiano breached a duty

to Duch and, consequently, defendants cannot be held liable on account of Christiano’s inaction.

                            b.        Jakubek

         Unlike Christiano, the critical question with respect to Jakubek is whether he had actual or

constructive knowledge that Duch was being sexually harassed. If he did, there is no doubt that his

knowledge can be imputed to the remaining employer defendants because Jakubek was Kohn’s

supervisor and, as such, was “charged with a duty to act on the knowledge and stop the harassment.”

Torres, 116 F.3d at 636-37 (“[W]here the person who gained notice of the harassment was the

supervisor of the harasser (e.g., had the authority to hire, fire, discipline, or transfer him), knowledge will

be imputed to the employer on the ground that the employer vested in the supervisor the authority and

the duty to terminate the harassment.”).3 We therefore turn our attention to the evidence from which,

Duch argues, a jury could infer that Jakubek “knew, or in the exercise of reasonable care should have

known, about the harassment.” See Howley, 217 F.3d at 154 (internal quotation marks omitted).

         From the record evidence, viewed in the light most favorable to plaintiff and with all reasonable

inferences drawn in her favor, a jury could find the following: (1) Jakubek knew that Duch sought a

change in her work schedule for a time when she was scheduled to work alone with Kohn; (2) Jakubek

learned from other sources that Duch sought a schedule change to avoid working with Kohn; (3)

Jakubek asked Kohn about it, and Kohn admitted that he had done or said something he “should not

have,” J.A. 81; (4) Jakubek knew that Kohn had engaged in sex-related misconduct toward females in

the past; (5) Jakubek told Kohn, in reference to Kohn’s conduct toward Duch, that he should “cut it

out [and] grow up,” id.; (6) Jakubek knew that the subject of working with Kohn caused Duch to



         3
           Because Jakubek’s knowledge is clearly imputable to the employer on this ground, we need not decide
whether he was also an official of a “sufficiently high level in the [employer’s] management hierarchy to qualify as a
proxy for the [employer].” See Torres, 116 F.3d at 636.
                                                              12
become emotional, “teary and red,” and to respond, trying to maintain her composure, “I can’t talk

about it,” J.A. 81-82; (7) Jakubek answered, “That’s good because I don’t want to know what

happened,” J.A. 82; and (8) Jakubek then agreed to change Duch’s schedule for the specific purpose of

avoiding her having to work alone with Kohn at night.

         Based on this aggregation of facts, a jury could reasonably find that Jakubek strongly suspected

that it was sexual harassment on Kohn’s part that was responsible for Duch’s emotional reaction,4 that

Jakubek understood the issue was ongoing, cf. Murray v. N.Y. Univ. Coll. of Dentistry, 57 F.3d 243, 250 (2d

Cir. 1995) (holding that an official did not have constructive knowledge because, “though [he] must

have viewed [the conduct] as having sexual overtones in light of [the harasser’s] past behavior,” there

was no suggestion that he had knowledge that the “misbehavior was part of [an] ongoing course of

harassment” (emphasis added)), that the indications of sexual misconduct were sufficiently strong that

Jakubek had a duty to make at least a minimal effort to discover whether Kohn had engaged in sexual

harassment, and that instead of encouraging Duch to discuss the problem, Jakubek discouraged her from

revealing the full extent and nature of the harassment by stating in response to her reticence that he did

not want to know what happened. Given the foregoing, we hold that a reasonable jury could conclude

that Duch’s employer had at least constructive knowledge of the sexual harassment directed at her.

         In so holding we do not announce a new rule of liability for employers who receive nonspecific

complaints of harassment from employees. We merely recognize that, under the existing law of this

Circuit, when an employee’s complaint raises the specter of sexual harassment, a supervisor’s

purposeful ignorance of the nature of the problem—as Jakubek is alleged to have displayed—will not

         4
            Although Jakubek expressed that Kohn told him that the issue between Kohn and Duch arose from his
having told her that “although she was book smart, she lacked common sense,” J.A. 36, the fact that Jakubek knew of
Kohn’s prior sexual misconduct, that he told Kohn to “cut it out, to grow up,” J.A. 81, and that he intervened to avoid
having Duch and Kohn work alone together at night, could lead a reasonable jury to disbelieve Jakubek’s exculpatory
claim and to conclude that Jakubek knew or suspected that Kohn had engaged in sexual misconduct and contrived not
to learn the facts.

                                                             13
shield an employer from liability under Title VII. Accordingly, notwithstanding the District Court’s

observation that Jakubek “was never told of, and did not witness, the alleged harassment,” Duch, 2007

WL 2230174, at *7, we hold that a reasonable jury could conclude that Jakubek “knew, or in the

exercise of reasonable care should have known, about the harassment.” See Howley, 217 F.3d at 154

(internal quotation marks omitted).

        We next consider the adequacy of the employer’s response.

                 c.      Whether the Employer Took Appropriate Remedial Action

        In Distasio v. Perkin Elmer Corporation, we held that

        [w]hether [a] company’s response was reasonable has to be assessed from the totality
        of the circumstances. Factors to be considered in this analysis are the gravity of the
        harm being inflicted upon the plaintiff, the nature of the employer’s response in light
        of the employer’s resources, and the nature of the work environment.

157 F.3d at 65. “If the evidence creates an issue of fact as to whether an employer’s action is effectively

remedial and prompt, summary judgment is inappropriate.” Gallagher v. Delaney, 139 F.3d 338, 348 (2d

Cir. 1998) (emphasis added), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 542 U.S. 742

(1998); see, e.g., Kracunas v. Iona Coll., 119 F.3d 80, 88 (2d Cir. 1997) (holding that a district court erred in

concluding that an employer’s response, taken four to six months after the employer learned of the

allegations, was appropriate as a matter of law), abrogated on other grounds by Gebser v. Lago Vista Indep. Sch.

Dist., 524 U.S. 274 (1989), and Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999).

        The District Court concluded that “[a]ssuming arguendo that the Employer Defendants knew or

should have known of the alleged harassment . . . their response was reasonable.” Duch, 2007 WL

2230174, at *10. The District Court based this conclusion on the following: (1) Jakubek changed

Duch’s schedule when asked and (2) when Duch filed a formal complaint with the Special Inspector

General for Bias Matters, an investigation was commenced. Id.



                                                       14
       In light of our holding that a jury could find that defendants had knowledge of the harassment

in October 2001—when Duch first requested a schedule change from Jakubek—we conclude that a

jury could also find that defendants’ response was unreasonable. Although Jakubek did adjust the

schedule so that Duch and Kohn would not be working together without other court officers on duty,

Kohn’s harassment persisted and escalated during the months that followed. A formal investigation of

Kohn was not commenced until January 2002, after Duch informed another co-worker of the

harassment and three months after the date upon which a jury could find that Jakubek first learned of the

harassment. Under these circumstances, we cannot say, as a matter of law, that defendants’ response

was “effectively remedial and prompt.” Gallagher, 139 F.3d at 348.

II.    Plaintiff’s Motion to Amend the Complaint

       Duch’s final argument on appeal is that the District Court erred in denying her motion to

amend the complaint to include claims against Jakubek in his individual capacity under the NYSHRL

and NYCHRL. The District Court denied Duch’s motion on the ground that amending the complaint

would be futile because, inter alia, “no reasonable fact-finder could conclude that Jakubek should have

known about the harassment through the exercise of reasonable care” and therefore “[p]laintiff cannot

plead facts, which if believed, would be sufficient to show that Jakubek failed to take appropriate

investigative or remedial measures.” Duch, 2007 WL 2230174, at *12. Because we hold that a

reasonable jury could conclude that Jakubek had constructive knowledge of the harassment, we vacate

the District Court’s judgment insofar as it denied Duch’s motion to amend.

                                           CONCLUSION

       In accordance with the foregoing, we AFFIRM the order of the District Court insofar as it

held (1) that Duch was not deprived of all reasonable avenues of complaint and (2) that defendants

cannot be liable based on information conveyed to Christiano. We VACATE the order of the District


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Court insofar as it (1) held that no reasonable jury could find that Jakubek knew or should have known

of the harassment directed at Duch, (2) held that no reasonable jury could find that defendants failed to

take appropriate remedial action, and (3) denied Duch’s motion to amend as futile. We REMAND the

cause for further proceedings consistent with this opinion.




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