Opinion
6189/07.
Decided April 27, 2011.
Plaintiff Stephanie O'Neil was represented by Antonette M. Milcetic, Esq. of Taubman Kimelman Soroka, LLP. Defendants Roman Catholic Diocese of Brooklyn and St. Ephrem's Church were represented by Paul D. Carpenter, Esq. of Murphy Higgins, LLP.
Recitation in accordance with CPLR 2219(a) of the papers considered on the motion of defendants Roman Catholic Diocese of Brooklyn and St. Ephrem's Church for an order, pursuant to CPLR 3212, dismissing the Amended Verified Complaint as against them:
Notice of Motion for Summary Judgment Affirmation in Support Exhibits A-M Affirmation in Opposition Exhibits A-N Reply AffirmationPlaintiff Stephanie O'Neil was represented by Antonette M. Milcetic, Esq. of Taubman Kimelman Soroka, LLP. Defendants Roman Catholic Diocese of Brooklyn and St. Ephrem's Church were represented by Paul D. Carpenter, Esq. of Murphy Higgins, LLP.
In her Amended Verified Complaint, plaintiff Stephanie O'Neil alleges that, beginning in June or July 2005, when she was not yet 18 years old, she worked part-time, performing clerical duties, at the Rectory of defendant St. Ephrem's Church in Brooklyn; and that defendant Anthony Ocloo was a priest at St. Ephrem's, "an employee, agent and/or servant" of defendant Roman Catholic Diocese of Brooklyn "and/or St. Ephrem's" (amended verified complaint ¶ 3), and "one of [her] supervisors" ( id. ¶ 18.)
Plaintiff alleges further that "[b]eginning in approximately August or September 2005, Defendant Ocloo began spending an inordinate and unjustified amount of time in the rectory office with [her] and subjected [her] to excessive compliments, comments and inquiries, sexually oriented physical contact and gestures and sexually oriented propositions, creating for [her] a hostile work environment" ( id. ¶ 20); "[t]hat on October 7, 2005, while working in the Rectory, Defendant Ocloo physically and sexually assaulted Plaintiff, pinning her body between his own and a table, rubbing up against her, hugging her, kissing her on the mouth, neck and chest, forcefully inserting his tongue in her mouth and fondling her breasts and buttocks" ( id. ¶ 22); and that "[d]ue to the hostile work environment created by Defendant Ocloo and condoned and/or aided by Defendants Diocese and/or St. Ephrem's, Plaintiff was forced to terminate her position at the Rectory and was constructively discharged from her employment on October 7, 2005" ( id. ¶ 24.)
Based primarily on these alleged facts, Plaintiff purports to allege six causes of action against defendants Diocese of Brooklyn and St. Ephrem's: sex discrimination in employment prohibited by the State Human Rights Law ( see Executive Law § 296 et seq.) and the City Human Rights Law ( see Administrative Code of the City of NY § 8-107 et seq.); battery; negligent supervision of Plaintiff; and negligent hiring, training, and supervision of defendant Ocloo. Plaintiff asserts that she has "suffered severe personal injuries, including, but not limited to, lost wages, emotional distress, pain and suffering, anxiety, depression, fear and other psychological trauma and injury" (amended verified complaint ¶¶ 29, 33, 56, 59, 69, 76.)
Defendants Diocese of Brooklyn and St. Ephrem's Church now move for an order, pursuant to CPLR 3212, dismissing the Amended Verified Complaint as against them. Defendants contend that they are entitled to judgment as a matter of law as to the alleged statutory and common law causes of action. Although Defendants argue in part based upon the exclusivity provisions of the Workers' Compensation Law, they fail to allege that affirmative defense in their Amended Verified Answer, and do not seek leave to amend to add it. ( See CPLR 3025 [b]; Bonavita v McNicholas , 72 AD3d 859 , 859 [2d Dept 2010].) Since, however, Plaintiff addresses the defense in her opposition without claiming surprise or prejudice ( see affirmation in opposition ¶¶ 140-42; see also Millbrook Hunt, Inc. v Smith, 249 AD2d 283, 284 [2d Dept 1998]), the Court will assume there is none and address the defense as well.
In support of their motion, Defendants submit the affidavits of Peter Kain, pastor at St. Ephrem's now and during the time period relevant to Plaintiff's claims; Caleb Buchanan, a priest who served at St. Ephrem's during the relevant time period; Lisa Pinsky, parish secretary at St. Ephrem's during that period; and Michele James, business manager for St. Ephrem's during that period. They also submit portions of the transcripts of the examinations before trial of Plaintiff and of Fatima O'Neil, Plaintiff's mother. Since the transcripts are incomplete and are not signed or shown to have been submitted to the deponents for review pursuant to CPLR 3016 (a), they are not available as evidence in support of summary judgment. ( See Martinez v 123-16 Liberty Ave. Realty Corp. , 47 AD3d 901, 902 [2d Dept 2008].) Since, however, the complete, signed transcript of Plaintiff's deposition testimony is submitted with her opposition, the Court will consider it.
Negligence
Defendants contend first that the causes of action sounding in negligence must be dismissed either because they are barred by the exclusivity provisions of the Workers' Compensation Law, or because "the facts of this case do not support a finding of negligence by" either Defendant (affirmation in support ¶ 55.) Plaintiff was employed as a part-time "student secretary" by St. Ephrem's, answering phone calls, receiving visitors to the rectory, and completing paperwork left for her by the full-time parish secretary. Defendant Ocloo was employed part-time by St. Ephrem's while pursuing a graduate degree at St. John's University; he assisted with "ministerial and sacramental assignments in the parish," and was assigned one "duty day" each week to respond to parishioners' requests. ( See affidavit in support of Peter Kain ¶¶ 20, 27, 28.)
As against St. Ephrem's, "[s]ince the plaintiff acknowledges that the offensive conduct occurred while she was performing her job duties' as an employee of the defendant, . . . as a matter of law, her cause[s] of action sounding in negligence [are] barred by the Workers' Compensation Law, because workers' compensation is her exclusive remedy." ( See Sormani v Orange County Community College, 240 AD2d 724, 724 [2d Dept 1997] [plaintiff employed part-time doing clerical work in physical education department of college allegedly sexually harassed by part-time coach of women's basketball team].)
Plaintiff's opposition does not address the Workers' Compensation Law bar to claims against St. Ephrem's, and thus the Sixth, Seventh, and Eighth Causes of Action must be dismissed as against defendant St. Ephrem's Church.
As to defendant Roman Catholic Diocese of Brooklyn, as Plaintiff correctly contends in opposition, Defendant fails to establish prima facie that it should also be deemed Plaintiff's employer for purposes of the Workers' Compensation Law bar. ( See Dennihy v Episcopal Health Services, Inc., 283 AD2d 542, 543 [2d Dept 2002]; see also Smith v Roman Catholic Diocese, 252 AD2d 805, 806-07 [3d Dept 1998]; Pappas v Greek Archdiocese of North and South America, 178 AD2d 104, 104 [1st Dept 1991].) To the extent, therefore, that Defendants' motion is based on that ground, it must be denied.
Defendants also assert, however, that the Diocese cannot be liable in negligence to Plaintiff. In addressing Defendants' Workers' Compensation Law contention, Plaintiff asserts that "plaintiff was not employed by the diocese"; "[s]he was hired by St. Ephrem's and paid by St. Ephrem's"; and "[t]herefore, plaintiff's negligence claims against the diocese in failing to follow its own policies and procedures are not barred." ( See affirmation in opposition ¶ 142.) The reference is apparently to Plaintiff's allegations that "[r]ecognizing and acknowledging that an epidemic of sexual abuse against minors by priests and deacons existed throughout the Diocese and/or the Catholic Church generally, prior to October 7, 2005, Defendant Diocese and/or St. Ephrem's implemented, in response to said epidemic, various new policies and procedures, reporting and investigative mechanisms and preventive measures in the form of background checks, psychological evaluations and training classes." ( See amended verified complaint ¶ 25; see also id. ¶ 53.)
Defendants establish prima facie that both Plaintiff and defendant Ocloo were employees of St. Ephrem's, and that both were hired, trained, and supervised by St. Ephrem's. Absent an employment relationship, which Plaintiff explicitly denies as to herself and the Diocese, the Amended Verified Complaint does not reveal any basis for finding that defendant Diocese owed any duty to Plaintiff to properly hire, train, or supervise either Plaintiff or defendant Ocloo.
It is axiomatic that, without a duty to act with reasonable care to avoid harm to another, there can be no actionable negligence. ( See Pulka v Edelman, 40 NY2d 781, 782 ["In the absence of duty, there is no breach and without a breach there is no liability.]; see also Doe v Roman Catholic Diocese of Rochester , 12 NY3d 764, 765-66 [fiduciary duty].) The Court has been cited to no authority to support a conclusion that the Diocese's adoption of "policies and procedures," whether in the nature of prevention or enforcement or both, to address possible sexual abuse by priests creates in itself a duty to all persons to follow the "policies and procedures" in particular, or more generally to protect all persons from sexual abuse.
"[T]here is no basis for the proposition that a party may be held liable for failing to follow a policy which it has adopted voluntarily, and without legal obligation, especially when there is no showing of detrimental reliance by the plaintiff[] on the defendants [ sic] following that policy." ( Newsome v Cservak, 103 AD2d 637, 638 [2d Dept 1987]; see also Byrne v Collins , 77 AD3d 782 , 784-85 [2d Dept 2010]; Boehme v A.P.P.L.E., 298 AD2d 540, 541 [2d Dept 2002].)
Even assuming a duty owed to Plaintiff by the Diocese (again, as opposed to St. Ephrem's), and whether her claim is for negligence in supervision of her or negligence in hiring and supervision of defendant Ocloo, there must be proof that the Diocese knew or should have known that defendant Ocloo presented some danger of sexual assault to St. Ephrem's personnel or parishioners. ( See Osvaldo D. v Rector Church Warden and Vestrymen of Trinity Church of NY , 38 AD3d 480 , 480 [1st Dept 2007]; Liang v Rosedale Group Home , 19 AD3d 654 , 655 [2d Dept 2005]; Steinborn v Himmel , 9 AD3d 531 , 533 [3d Dept 2004]; Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159, 161 [2d Dept 1997].) Discovery is concluded, Plaintiff having filed her note of issue, and there is nothing found in this record to suggest that the Diocese had any level of awareness that defendant Ocloo would present a danger to St. Ephrem's personnel or parishioners, of sexual assault or otherwise. Nor is there evidence that the Diocese had such supervision or control over St. Ephrem's that it should be liable for the alleged sexual assault of one of its priests. ( See Buckley v Diocese of Rockville Center, 277 AD2d 192, 192 [2d Dept 2000].)
On this record, therefore, defendant Roman Catholic Diocese of Brooklyn establishes prima facie that it is entitled to dismissal of Plaintiff's claims sounding in negligence with evidence that it did not employ defendant Ocloo. The burden shifts then to Plaintiff to raise a triable issue as to either the Diocese's employment of defendant Ocloo, or as to some other fact that would create a duty on the part of the Diocese to protect Plaintiff from the harm she allegedly sustained because of defendant Ocloo's conduct.
In opposition to Defendants' motion, Plaintiff submits Plaintiff's deposition testimony and the deposition testimony of Monsignor Peter Kain, Father Caleb Buchanan, Lisa Pinsky, the parish secretary, and Sister Patricia Hudson, director of the Safe Environment Office for the Diocese of Brooklyn during the relevant time period. The transcripts are either signed by the deponent, or shown to have been sent to the witness for review pursuant to CPLR 3116 (a), and can, therefore, provide evidence for Plaintiff's opposition.
Except for Monsignor Kain's testimony that he had not reviewed defendant Ocloo's "background documents," and that the "background check or verification process was completely handled by the Diocese" ( see affirmation in opposition ¶ 23), there is no evidence that the Diocese hired defendant Ocloo for St. Ephrem's Church, or was in any way otherwise involved in his training or supervision. Defendant Ocloo was a visiting priest from Ghana, sent to replace another visiting priest from Ghana who had been called back to his country. The only evidence is that both priests were sent to St. Ephrem's and received by the parish pursuant to a long-standing relationship between the parish and Bishop Anthony Kwami Adanuty and his Diocese of Keta-Akatsi in Ghana. ( See affidavit of Peter Kain ¶¶ 22-25.) The Court has been cited to nothing that would create a triable issue on the existence of a duty on the part of the Diocese to protect Plaintiff from the conduct of defendant Ocloo.
As a result, the Sixth, Seventh, and Eighth causes of action in the Amended Verified Complaint as against defendant Roman Catholic Diocese of Brooklyn must be dismissed.
Neither Defendants nor Plaintiff specifically address the Fifth Cause of Action in the Amended Verified Complaint, which appears to allege common-law battery against defendant Ocloo, and liability on the part of defendants Roman Catholic Diocese of Brooklyn and St. Ephrem's Church pursuant to the doctrine of respondeat superior. As to defendant Diocese, however, the doctrine is not applicable absent an employment or agency relationship between the Diocese and defendant Ocloo. In any event, as to both Defendants, clear authority establishes that a sexual assault was not within the scope of defendant Ocloo's authority. ( See N.X. Cabrini Med. Ctr., 97 NY2d 274, 251; Oswaldo D. v Rector Church Warden and Vestrymen of Trinity Church of NY, 38 AD3d at 480.)
In sum, Defendants motion must be granted to the extent that the Fifth, Sixth, Seventh, and Eight Causes of Action must be dismissed as against defendants Roman Catholic Archdiocese of Brooklyn and St. Ephrem's Church.
Sexual Harassment
The First and Second Causes of Action in the Amended Verified Complaint allege, respectively, that defendants Roman Catholic Diocese of Brooklyn and St. Ephrem's Church "discriminated against Plaintiff on the basis of her sex" in violation of State and City Human Rights Laws "by engaging in and/or permitting acts that unreasonably interfered with the plaintiff's work performance and or [ sic] created an intimidating, hostile, offensive working environment and that adversely affected the terms, conditions and privileges of her employment." (amended verified complaint ¶¶ 28, 32.)
These claims of sexual harassment as a "species of sex — or gender-based discrimination" ( see Williams v New York City Hous. Auth. , 61 AD3d 62 , 75 [1st Dept 2009]) are based upon four incidents during a period of less than two months, the first occurring in late August 2005, the last on October 7, 2005. As testified to by Plaintiff, the first incident consisted of a request by Father Ocloo for a hug as a "reward" for his permitting Plaintiff to use his laptop, with which she complied by giving him a brief hug ( see affirmation in opposition ¶ 116); on a second occasion, Father Ocloo lifted Plaintiff off the floor, and would not put her down for approximately two minutes despite her protests, while he was panting or crying ( see id. ¶ 118); the third incident began with Father Ocloo's request that Plaintiff teach him to dance, then he took hold of her arm and pulled her close, only letting her go when someone approached ( see id. ¶ 119); and then, finally, another request for a "reward" and hug, with Father Ocloo proceeding "to pin [Plaintiff] between himself and [a] table, kiss her with his tongue, kiss her breasts, and fondle her breasts, until she was able to push away and run home" ( see id. ¶ 121.)
Defendants contend that Plaintiff cannot succeed on her statutory discrimination claims for essentially two reasons: first, that the alleged conduct of defendant Ocloo was not sufficiently "severe or pervasive" to constitute actionable sexual harassment; and second, that there is no basis for imputing that conduct to either defendant Diocese or defendant St. Ephrem's, because neither was on notice of defendant Ocloo's conduct until after the final incident, when they took immediate action, and because defendant Ocloo was not one of Plaintiff's supervisors.
Defendants do not contend on this motion that defendant Diocese cannot be liable for a violation of either the State or City Human Rights Law because the Diocese was not Plaintiff's employer, and there is no allegation that either the Diocese or St. Ephrem's directly participated in the offending conduct. Unlike general negligence law, it is not clear that statutory liability is determined by traditional concepts of employment or agency, and since neither Defendants nor Plaintiff addresses the issue, the Court deems it prudent to leave it for another day.
For purposes of a claim under the State Human Rights Law ( see Executive Law ¶ 296 et seq.), the Court of Appeals recently set out the elements of a hostile work environment/sexual harassment claim:
"A . . . hostile work environment exists [w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment . . . Whether an environment is hostile or abusive can be determined only by looking at all of the circumstances, including 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. The effect on the employee's psychological well-being is, of course, relevant to whether the employee actually found the environment abusive . . . Moreover, the conduct must have altered the conditions of the victim's employment by being subjectively perceived as abusive by the plaintiff, and have created an objectively hostile or abusive environment — one that a reasonable person would find to be so." ( Forrest v Jewish Guild for the Blind , 3 NY3d 295 , 310-11 [internal quotation marks and citations omitted].)
"Even a single incident of sexual harassment can create a hostile work environment if the alleged conduct is sufficiently severe." ( See Beharry v Guzman , 33 AD3d 742 , 743 [2d Dept 2006]; see also Mathirampuzha v Potter, 548 F3d 70, 79 [2d Cir 2008] ["A single incident of rape, for example, sufficiently alters the conditions of the victim's employment and clearly creates an abusive work environment for purposes of Title VII liability for sex-based discrimination."].)
A defendant may obtain summary judgment on a hostile work environment claim under the State Human Rights Law by demonstrating that, "viewing the totality of the evidence in the light most favorable to the plaintiff . . ., the offensive conduct was not sufficiently severe or pervasive to alter the conditions of her employment and create an objectively hostile or abusive work environment." ( See Barnum v New York City Tr. Auth. , 62 AD3d 736 , 738 [2d Dept 2009]; see also Forrest v Jewish Guild for the Blind, 3 NY3d at 311-12.)
Not so, however, as to a hostile work environment claim under the City Human Rights Law ( see Administrative Code of the City of NY § 8-107 et seq.) Under the City law, "questions of severity' and pervasiveness' are applicable to consideration of the scope of permissible damages, but not to the question of underlying liability." ( See Williams v New York City Hous. Auth., 61 AD3d at 76.) "[L]iability is normally determined simply by the existence of unwanted gender-based conduct." ( Id.)
For liability under the City law, "the primary issue for a trier of fact in harassment cases, as in other terms-and-conditions cases, is whether the plaintiff has proved by a preponderance of the evidence that she has been treated less well than other employees because of her gender." ( Id. at 78.) "At the summary judgment stage, judgment should normally be denied to a defendant if there exists triable issues of fact as to whether such conduct occurred." ( Id.)
Under the City law, there is "an affirmative defense whereby defendants can still avoid liability if they prove that the conduct complained of consists of nothing more than what a reasonable victim of discrimination would consider petty slights and trivial inconveniences'." ( See id. at 79-80.) "[S]ummary judgment will still be available where [an employer] can prove that the alleged discriminatory conduct in question does not represent a borderline' situation but one that could only be reasonably interpreted by a trier of fact as representing no more than petty slights or trivial inconveniences." ( Id. at 80.)
It is clear that Defendants cannot obtain summary dismissal of Plaintiff's claim under the City Human Rights Law on the ground that defendant Ocloo's conduct was not sufficiently "severe or pervasive," and Defendants have not shown that the conduct "could only be reasonably be interpreted by a trier of fact as representing no more than petty slights or trivial inconveniences." ( See id.)
As to Plaintiff's claim under the State Human Rights Law, the Court cannot say on this record that, as a matter of law, defendant Ocloo's conduct was not sufficiently "severe or pervasive." Defendants have not addressed the effect of that conduct on Plaintiff's "psychological well-being" ( see Forrest v Jewish Guild for the Blind, 3 NY3d at 311), and in considering whether a reasonable person would find that defendant Ocloo's conduct created a hostile or abusive environment, the Court notes that, immediately upon learning of the October 7 incident, Monsignor Kain "contacted the hotline which put [Plaintiff and her mother] in touch with the Brooklyn District Attorney's office, which arrested and prosecuted Father Ocloo on criminal charges" ( see affidavit of Peter Kain ¶ 34.)
Defendants may yet succeed on their motion, however, if they show that they cannot be liable under either the State or City law for defendant Ocloo's conduct. Here again, the two schemes are not the same.
"Under the Executive Law, an employer cannot be held liable for an employee's discriminatory act unless the employer became a party to it by encouraging, condoning, or approving it . . . Although an employer's calculated inaction in response to discriminatory conduct may, as readily as affirmative conduct, indicate condonation . . ., condonation contemplates a knowing, after-the-fact forgiveness or acceptance of an offense . . . Therefore, only after an employer knows or should have known of the improper conduct can it undertake or fail to undertake action which my be construed as condoning the improper conduct." ( Matter of Medical Express Ambulance Corp. v Kirkland , 79 AD3d 886 , 887-88 [2d Dept 2010] [brackets, internal quotation marks, and citations omitted]; see also Matter of State Div. of Human Rights v St. Elizabeth's Hosp., 66 NY2d 684, 687.)
Except where the employee is the employer's "highest ranking employee" or "a top manager," "the doctrine of respondeat superior, or vicarious liability based upon the agency relationship, is not available in cases involving discrimination, including sex-based discrimination and its sexual harassment component." ( See Matter of Father Belle Community Ctr. v New York State Div. of Human Rights, 221 AD2d 44, 53-54 [4th Dept 1996]; see also Bianco v Flushing Hosp. Med. Ctr. , 79 AD3d 777 , 779 [2d Dept 2010] ["high level managerial employee"]; Ellis v Child Dev. Support Corp. , 5 AD3d 430, 431-32 [2d Dept 2004] [same].) "Under New York law, in order to recover against an employer, the complainant must demonstrate that the employer acquiesced in the discriminatory conduct or subsequently condoned it." ( See Matter of Father Belle Community Ctr. v New York State Div. of Human Rights, 221 AD2d at 53.)
The City Human Rights Law "imposes liability on the employer in three instances: (1) where the offending employee exercised managerial or supervisory responsibility' . . .; (2) where the employer knew of the offending employee's unlawful discriminatory conduct and acquiesced in it or failed to take immediate and appropriate corrective action'; and (3) where the employer should have known' of the offending employee's unlawful discriminatory conduct yet failed to exercise reasonable diligence to prevent [it]'." ( Zakrewska v The New School, 14 NY3d 469, 479 [quoting Administrative Code of City of NY § 8-107 (13) (b) (1)-(3)].) The City law in effect "imposes strict liability for a supervisor's discriminatory acts." ( See id. at 481.)
If, therefore, defendant Ocloo was Plaintiff's supervisor, i.e., "exercised managerial or supervisory responsibility," her claim under the City law against defendants Roman Catholic Diocese of Brooklyn and St. Ephrem's Church is for strict liability, and their motion for summary dismissal of that claim must be denied. Since Plaintiff cannot contend, however, that defendant Ocloo was the "highest ranking employee" or "a top manager" ( see Matter of Father Belle Community Ctr. v New York State Div. of Human Rights, 221 AD2d at 54), Defendants may succeed on their motion for summary dismissal of the State law claim if they did not "acquiesce[] in the discriminatory conduct or subsequently condone[] it" ( see id. at 53.)
Neither the State nor the City law define "supervisor" or "managerial or supervisory responsibility," and caselaw applying those laws does not supply any definition. Federal courts enforcing Title VII's prohibition of sexual harassment have disagreed on the nature and scope of supervisory status for that purpose. The Seventh Circuit has considered "the essence of supervisory status [to be] the authority to affect the terms and conditions of the victim's employment," "the power to hire, fire, demote, promote, transfer, or discipline an employee." ( See Parkins v Civil Constructors of Illinois, Inc., 163 F3d 1027, 1034 [7th Cir. 1998].) The Second Circuit has considered "whether the authority given by the employer to the employee enabled or materially augmented the ability of the latter to create a hostile work environment for his or her subordinates." ( See Mack v Otis Elevator Co., 326 F3d 116, 126 [2d Cir 2003].) This broader conception would include the "authority to direct the employee's daily work activities" ( see id. at 127 [quoting EEOC Enforcement Guidelines on Vicarious Employer Liability for Unlawful Harassment by Supervisors, 8 FEP Manual (BNA) 405: 7654 (1999)]), such that a "senior employee regularly on site" who "had and exercised the authority to make and oversee the daily work assignments" of the plaintiff, would be deemed her supervisor ( see id.)
The broader conception adopted by the Second Circuit is more compatible with the City law's formulation "managerial or supervisory responsibility" ( see Administrative Code of City of NY § 8-107 [13] [b] [1]), whereas the Seventh Circuit's narrower conception would better describe the "highest ranking employee" or "a top manager" ( see Matter of Father Belle Community Ctr. v New York State Div. of Human Rights, 221 AD2d at 54) for State law purposes.
Here, whichever conception governs, Defendants have established prima facie that defendant Ocloo was not Plaintiff's supervisor for purposes of either the State or City Human Rights Law. Monsignor Kain asserts that "[n]o priest had any role in directing or evaluating how the student secretaries completed the work Lisa Pinsky [the parish secretary] assigned to them" (affidavit of Peter Kain ¶ 16); "[n]o one" other than Monsignor Kain and Lisa Pinsky "had the authority — or was even qualified — to offer any input on" the quality and quantity of the work of the student secretaries, "including any priest" ( id. ¶ 17); "[b]ecause of their incidental presence in the parish," Monsignor Kain "ha[d] never assigned a visiting priest any parish business or administrative duties" ( id. ¶ 21); "Father Ocloo was not involved in any administrative function relating to the business of [the] parish, nor did he ever oversee, supervise or evaluate the performance of any of the clerical or secretarial work at St. Ephrem's," and he "had no time in his full-time graduate degree schedule to do so" ( id. ¶ 30.)
In opposition, Plaintiff appears to concede that defendant Ocloo did not enjoy any supervisory status for purposes of strict or vicarious liability. In any event, the most that can be said by Plaintiff on this issue is that the deposition testimony of Monsignor Kain and Lisa Pinsky shows that it was part of the job responsibilities of the student secretaries to perform clerical tasks for both Monsignor Kain and Father Buchanan, as well as Father Ocloo ( see affirmation in opposition ¶ 40), and that Father Buchanan was in charge when Monsignor Kain was not available ( see id. ¶¶ 46, 62.) Plaintiff's deposition testimony that "[s]he was told by Ms. Pinsky that the bosses were the priests — whatever they needed — she had to answer to them" ( see id. ¶ 111) can be taken no more literally than her testimony that "[n]o one supervised or evaluated her work" ( see id. ¶ 113.) In any event, none of the cited testimony is sufficient to raise a triable issue as to defendant Ocloo's supervisory status.
To the extent, therefore, that Plaintiff's State or City Human Rights Law claims rest on an allegation of defendant Ocloo's supervisory status, and thus strict or vicarious responsibility, they must be dismissed as against defendants Roman Catholic Diocese of Brooklyn and St. Ephrem's Church.
There remains, however, Defendants' alleged direct liability for Father Ocloo's sexual harassment of Plaintiff. Again, under the State Human Rights Law, the employer must be held liable for an employee's discriminatory conduct if the employer "became a party to it by encouraging, condoning, or approving it" ( see Matter of Medical Express Ambulance Corp. v Kirkland, 79 AD3d at 887; see also Matter of Father Belle Community Ctr. v New York State Div. of Human Rights, 221 AD2d at 53 ["acquiesced in the discriminatory conduct or subsequently condoned it"].) Again, under the City Human Rights Law, where the harasser does not "exercise[] managerial or supervisory responsibility," the employer will be liable where it "knew of the offending employee's unlawful discriminatory action and acquiesced in it or failed to take immediate and appropriate corrective action'," or "where the employer should have known' of the offending employee's unlawful discriminatory conduct yet failed to exercise reasonable diligence to prevent [it]'." ( See Zakrewska v The New School, 14 NY3d at 479 [quoting Administrative Code of the City of NY § 8-107 (13) (b) (2)-(3)].) Since the State Human Rights Law incorporates a "known or should have known" element ( see Matter of Medical Express Ambulance Corp. v Kirkland, 79 AD3d at 887-88), it does not appear that the State and City Laws differ materially on this issue. The City Law does, however, expand upon the element of knowledge by providing that "an employee shall be deemed to have knowledge of an employee's or agent's discriminatory conduct where that conduct was known by another employee or agent who exercised managerial or supervisory responsibility." ( See Administrative Code of the City of NY § 8-107 [13] [b] [2].)
Here, Defendants establish prima facie that they neither knew nor should have known of defendant Ocloo's discriminatory conduct. It is undisputed that neither Plaintiff nor anyone on her behalf ever advised anyone at St. Ephrem's or the Diocese of any of the three incidents prior to the sexual assault on October 7, 2005; and that, immediately upon being advised of the sexual assault, St. Ephrem's assisted Plaintiff and her mother in contacting the Brooklyn District Attorney.
In his affidavit, Monsignor Kain asserts that "Father Ocloo's Bishop not only spoke in glowing terms about him, but repeated his knowledge of his character and good standing in his home diocese in a letter sent to the Diocese of Brooklyn," which is attached as an exhibit ( see affidavit of Peter Kain ¶ 24 and letter dated November 27, 2004, exhibit B.) Monsignor Kain describes Father Ocloo as "a gentle and soft-spoken man in his mid-forties who was quiet but cordial to all" ( see id. ¶ 26), and asserts that prior to October 7, 2005 "neither plaintiff nor anyone else ever reported any alleged prior inappropriate conduct by Father Ocloo to me" ( see id. ¶ 33), and "even after Father Ocloo entered a guilty plea in court, on condition that he leave this country and not return, no one else ever advised me of any other inappropriate behavior on his part" ( see id. ¶ 36.)
When Monsignor Kain encountered Plaintiff prior to October 7, "she appeared happy and relaxed" and "never exhibited any change in affect or behavior to alert [him] that her employment situation might have changed for her" ( see id. ¶ 38.) Monsignor Kain's statements about the lack of any suggestion of inappropriate conduct by Father Ocloo's and Plaintiff's apparent comfort in her job are echoed by Father Buchanan ( see affidavit of Caleb Buchanan ¶¶ 14, 16, 20) and Lisa Pinsky ( see affidavit of Lisa Pinsky ¶¶ 18, 21, 22.)
In opposition, Plaintiff does not contend that either Defendant had actual knowledge of any of the three incidents of inappropriate conduct by defendant Ocloo prior to October 7, 2005, or of any other inappropriate conduct with Plaintiff or anyone else, and she does not raise a triable issue as to actual knowledge. Rather, Plaintiff contends that "Defendants should have known of Father Ocloo's discriminatory conduct and failed to prevent it" ( see affirmation in opposition ¶¶ 134-36); and that "Defendants failed to sufficiently establish that they promulgated to the student secretaries including plaintiff any antiharassment policies with complaint procedures or any other preventive measures" ( see id. ¶¶ 137-39.)
Plaintiff's contention that prior to October 7, 2005 Defendants should have known of defendant Ocloo's discriminatory conduct is based upon an assertion by Plaintiff's mother that "Father Buchanan had admitted to her in a phone conversation that he noticed Father Ocloo hanging around [Stephanie] a lot'" ( see affidavit of Fatima O'Neil ¶ 5.) Further, "[a]rmed with his Virtus training in the post clergy sex abuse scandal and knowing that neither Father Ocloo nor any priest had any business purpose to be in the rectory office where the student secretaries work, . . . Father Buchanan should have known of Father Ocloo's discriminatory conduct." (affirmation in opposition ¶ 135.) The reference is to a program known as "VIRTUS: Protecting God's Children" that Monsignor Kain described at his deposition as a "consciousness raising program" ( see id. ¶ 51.)
Assuming that the statement attributed to Father Buchanan was made and accurately reports his observation, and assuming that Father Buchanan had "managerial or supervisory responsibility" such that his knowledge would be imputed to Defendants ( see Administrative Code of the City of NY § 8-107 [13] [b] [2]), his observation is not in itself sufficient to raise a triable issue. ( See Liang v Rosedale Group Home, 19 AD3d at 656 [group home resident's complaint to staff member that another resident was "bothering" him insufficient to raise triable issue as to constructive notice of conduct that would make sexual assault foreseeable].)
In light of the record on the whole, including Plaintiff's failure to advise anyone at St. Ephrem's or the Diocese of the prior three incidents of defendant Ocloo's inappropriate conduct or any discomfort with him, the lack of any other complaints or information as to inappropriate conduct by defendant Ocloo, his personal demeanor and the positive information given Defendants about his reputation and character, and the absence of any observed discomfort on Plaintiff's part, it cannot be said that "hanging around [Stephanie] a lot" would lead a reasonable person to suspect possible wrongdoing.
Plaintiff cites to no provision in the State or City Human Rights Law or applicable caselaw that requires an employer to implement "antiharassment policies with complaint procedures or any other preventative measures," or that the absence of such policies, procedures, or measures would constitute evidence that the employer should have known of discriminatory conduct. Even assuming, therefore, the absence of such policies, procedures, and measures, it would not be sufficient to create a triable issue. Plaintiff does not dispute that she was given phone numbers for Monsignor Kain, Father Buchanan, Lisa Pinsky, and Michele James ( see affidavit of Lisa Pinsky ¶ 19), or that she was of sufficient age and experience to understand that she was invited to call with any problem or question. All personnel at St. Ephrem's might reasonably consider that "measure" at least as effective as a formal policy or procedure for the protection of student secretaries. Indeed, Plaintiff's own deposition testimony is clear that she discussed each of the three incidents prior to October 7 with her mother, and a decision was made not to report them; after the October 7 incident, Plaintiff demonstrated that she understood that she could complain.
The Court has noted the several references in the Amended Verified Complaint to an "epidemic of sexual abuse against minors by priests and deacons" ( see amended verified complaint ¶ 25; see also ¶¶ 52-54.) This Court, however, does not have any of those cases before it, and they cannot determine the result in this case. As found above, there are at least triable issues as to whether defendant Ocloo sexually harassed Plaintiff within the meaning of the State and City Human Rights Laws, or otherwise should be answerable to her in damages for his conduct. But the First and Second Causes of Action in the Amended Complaint seek to impose liability under the Human Rights Laws upon defendants Roman Catholic Diocese of Brooklyn and St. Ephrem's Church, and those Defendants have established that Plaintiff cannot proceed to trial against them on those claims.
In sum, defendants Roman Catholic Diocese of Brooklyn and St. Ephrem's Church have established that they are entitled to judgment as a matter of law on all Causes of Action alleged them, and Plaintiff has failed to raise triable issues as to any of them.
The motion of defendants Roman Catholic Diocese of Brooklyn and St. Ephrem's Church for dismissal of the Amended Verified Complaint as against them is granted. They may enter judgment accordingly.