09-0611-cv
Zakrzewska v. The New School

                                 UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT
                                                August Term 2008

(Submitted: June 16, 2009                                                    Question Certified: July 27, 2009)

                                             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.

        The United States District Court for the Southern District of New York (Lewis A. Kaplan,

Judge) certified the following question to this Court: does the affirmative defense to employer liability

articulated in Faragher v. City of Boca Raton, 

(1998), and Burlington Industries, Inc. v. Ellerth, 

(1998), apply to sexual harassment and retaliation claims under section 8-107 of the New York

City Administrative Code? See Zakrzewska v. The New School, 

, 437-438 (S.D.N.Y.

2009). We certify the question to the New York Court of Appeals because of the absence of

authoritative state court decisions, the importance of the issue to the state, and the capacity of

certification to resolve this litigation.

        Certified to the New York Court of Appeals.




                                                        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 :

        This interlocutory appeal presents a discrete question of law certified to us pursuant to 28

U.S.C. § 1292(b) by the United States District Court for the Southern District of New York (Lewis A.

Kaplan, Judge): “Does the affirmative defense to employer liability articulated in Faragher v. City of Boca

Raton, 

(1998) and Burlington Industries, Inc. v. Ellerth, 

(1998) apply to sexual

harassment and retaliation claims under New York City Administrative [Code] Section 8-107?”

Zakrzewska v. The New School, 

, 437-438 (S.D.N.Y. 2009).

                                             BACKGROUND

        Plaintiff Dominika Zakrzewska sued her co-worker, defendant Kwang-Wen Pan, and her

former employer, defendant-appellant The New School (“TNS”), 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. § 8-107.1 Plaintiff did not bring any

claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”).2 On a



        1
          The District Court had jurisdiction over this case, which only raises questions of state law,
pursuant to 28 U.S.C. § 1332 because the plaintiff claimed damages in excess of $75,000 and the
parties are citizens of different states. See Am. Compl. ¶ 3 (“Plaintiff . . . is a citizen of Poland. She
is a Permanent Resident of the United States, is domiciled in Florida, and pursuant to 28 U.S.C. §
1332, is deemed a citizen of Florida.”), 

4 (alleging that TNS, an institution of higher
education, is incorporated in New York and has its principal place of business in New York City);
and 

5 (alleging that Pan is a citizen of New York).
        2
          Ordinarily, Title VII provides the cause of action for workplace harassment lawsuits
brought in federal court. However, as the District Court observed, the instant case “is
representative of an increasing volume of employment discrimination cases that are brought [in
federal court] pursuant to one or both local New York anti-discrimination laws—the New York
State Human Rights Law (“NYSHRL”) and the NYCHRL—rather than Title VII . . . .” 

(footnote omitted).

                                                      2
motion for summary judgment by TNS, the issue of whether the affirmative defense to employer

sexual harassment liability for cases arising under Title VII set forth in Faragher and Burlington Industries,

Inc. applies under the NYCHRL. TNS maintains that this affirmative defense does apply and that TNS

has satisfied its requirements. Plaintiff, however, argues that this affirmative defense does not apply to

the NYCHRL. Furthermore, plaintiff argues, if the Faragher-Ellerth defense does apply, there is a

genuine issue of material fact as to whether TNS has satisfied its requirements and, therefore, summary

judgment is inappropriate. 

-32 (footnotes omitted).

        The District Court—in a thorough and comprehensive opinion—summarized the Faragher-

Ellerth defense as follows:

        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, 

,] (2) “the
        employer exercised reasonable care to prevent and correct promptly any sexually harassing
        behavior,” 

,] 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.]”

(footnotes omitted). The District Court then concluded that, if the

Faragher-Ellerth defense applied to plaintiff’s state law claims, TNS was entitled to judgment as a matter

of law. See 

        Turning its attention to whether the Faragher-Ellerth defense was available, the District Court

examined section 8-107, subdivision 13(b) of the New York City Administrative Code, which provides:

        An employer shall be liable for an unlawful discriminatory practice based upon the conduct of
        an employee or agent which is in violation of subdivision one or two of this section only where:

        (1) the employee or agent exercised managerial or supervisory responsibility; or

        (2) the employer knew of the employee’s or agent’s discriminatory conduct, and acquiesced in
        such conduct or failed to take immediate and appropriate corrective action; an employer 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; or

        (3) the employer should have known of the employee’s or agent’s discriminatory conduct and
                                                    3
        failed to exercise reasonable diligence to prevent such discriminatory conduct.

N.Y.C. AD. C. 8-107, subd. 13(b). The District Court found that there was “at least some evidence”

that Pan was a manager employed by TNS, and so TNS’s liability for Pan’s conduct turned on “the

purely legal question whether Farager-Ellerth controls here despite the arguably different approach to

employer vicarious liability embodied in the NYCHRL.” 

. After

acknowledging that this was an open question of law within the Circuit, the District Court considered

whether, “[a]s this is a diversity case, . . . the New York courts would be likely to apply Faragher-Ellerth

or to adopt a different interpretation of Section 8-107, subd. 13(b).” 

        In the District Court’s view, “the plain language of Section 8-107, subd. 13(b), is inconsistent

with the defense crafted by the Supreme Court in Faragher and Ellerth.” 

law “creates

vicarious liability for the acts of managerial and supervisory employees even where the employer has

exercised reasonable care to prevent and correct any discriminatory actions and even where the

aggrieved employee unreasonably has failed to take advantage of employer-offered corrective

opportunities.” 

District Court concluded that Faragher and Ellerth did not apply to

plaintiff’s state law claims and that TNS was liable under state law for the harassment and retaliation

allegedly committed by Pan, even though TNS would have otherwise qualified for the Faragher-Ellerth

defense. 

However, the District Court concluded that its “conclusion is not free from

doubt,” 

and that in light of the significance of the issue, certified the question pursuant to 28

U.S.C. § 1292(b).3


        3
            Title 28, section 1292(b) of the United States Code states, in relevant part:

        When a district judge, in making in a civil action an order not otherwise appealable under
        this section, shall be of the opinion that such order involves a controlling question of law as
        to which there is substantial ground for difference of opinion and that an immediate appeal
        from the order may materially advance the ultimate termination of the litigation, he shall so
        state in writing in such order. The Court of Appeals which would have jurisdiction of an
        appeal of such action may thereupon, in its discretion, permit an appeal to be taken from
        such order, if application is made to it within ten days after the entry of the order . . . .

                                                       4
        The case was submitted to this panel on a motion for leave to appeal on June 16, 2009 and we

granted that motion two days later with the instruction that the motions panel would resolve the merits.

                                              DISCUSSION

Standard of Review

        We review de novo a district court’s grant of summary judgment pursuant to Rule 56 of the

Federal Rules of Civil Procedure, construing all facts in favor of the non-moving party. See, e.g.,

Paneccasio v. Unisource Worldwide, Inc., 

, 107 (2d Cir. 2008). Summary judgment is only

warranted upon a showing “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).

Certification

        Both New York law and our own local rules permit us to certify to New York’s highest court

“determinative questions of New York law [that] are involved in a case pending before [us] for which

no controlling precedent of the Court of Appeals exists.” 22 N.Y.C.R.R. § 500.27; see also 2d Cir. R.

0.27 (“Where authorized by state law, this Court may certify to the highest court of a state an unsettled

and significant question of state law that will control the outcome of a case pending before this

Court.”), available at 28 U.S.C. Rules Pamphlet, Pt. I 352 (2008). Whether we ask a state court to

resolve unsettled legal questions will depend on, among other factors: “(1) the absence of authoritative

state court decisions; (2) the importance of the issue to the state; and (3) the capacity of certification to

resolve the litigation.” O’Mara v. Town of Wappinger, 

, 698 (2d Cir. 2007); see also Reliance Ins.

Co. v. PolyVision Corp., 

, 58 (2d Cir. 2007) (characterizing the same three factors noted in

O’Mara as “three principal issues” (emphasis added)); Tinelli v. Redl, 

, 606 n.5 (2d Cir. 1999)

(“Certification . . . is not proper where the question does not present a complex issue, there is no split

of authority and sufficient precedents exist for us to make [a] determination.” (internal quotation marks

omitted)).

        In light of these principles, we conclude that the question whether the Faragher-Ellerth defense
                                                     5
applies to section 8-107, subdivision 13(b) of the New York City Administrative Code is appropriate

for certification. First, this question has not yet been addressed by the New York Court of Appeals.4

Second, this is a question of considerable significance. As the District Court noted, employment

discrimination cases are a substantial portion of the caseload for the District Courts of this Circuit. See

. Because plaintiffs often assert claims under state and city

antidiscrimination laws, a resolution of the vicarious liability standards and defenses applicable under

those statutes is needed. Although a decision from our Court is binding only within in the federal

courts of our Circuit, our interpretation of the New York City Administrative Code would undoubtedly

have some impact on employment discrimination claims pending in the state courts as well. We

therefore proceed with caution and deference to the New York Court of Appeals. Third and finally,

the answer to this question is necessary to the resolution of this lawsuit. See Zakrzewska, 

at 437 (“[T]his is a controlling question of law, the resolution of which would materially advance the

ultimate termination of this litigation, as application of Faragher-Ellerth here would result in dismissal of

the action against TNS.”).

        Accordingly, we certify the following question to the New York Court of Appeals:

        Does the affirmative defense to employer liability articulated in Faragher v. City of Boca Raton, 

(1998) and Burlington Industries, Inc. v. Ellerth, 

(1998) apply to sexual
        harassment and retaliation claims under section 8-107 of the New York City Administrative
        Code?

        The New York Court of Appeals may reformulate or expand upon these questions as it sees fit,



        4
          We recognize that, after the District Court filed its opinion, the Appellate Division of the
New York Supreme Court, First Department, suggested that the Faragher-Ellerth defense is not
available in lawsuits brought under section 8-107 of the New York City Administrative Code
because “the text and legislative history represent a desire that the [NYCHRL] meld the broadest
vision of social justice with the strongest law enforcement deterrent.” Williams v. New York City
Hous. Auth., 

, 32 (1st Dept. 2009) (internal quotations omitted). We also note that,
in considering another state anti-discrimination statute, the New York’s courts have recognized a
Faragher-Ellerth defense. See, e.g., Barnum v. New York City Tr. Auth., 

, 455-56 (2d
Dept. 2009) (considering a hostile work environment claim brought under section 296 of the New
York Executive Law).
                                                      6
based on the record of this case.

                                             CONCLUSION

        For the reasons stated above, the question presented is CERTIFIED to the New York Court of

Appeals.

        The Clerk of the Court shall transmit to the New York Court of Appeals a notice of

certification, together with a copy of this opinion, the January 26, 2009 opinion of the District Court,

and a complete record of the case, including the set of briefs, appendices, and record filed by the

parties in this Court. This panel will retain responsibility for the decision of this case until we have

reviewed the response of the New York Court of Appeals to our certification.

        The parties shall bear equally any costs or fees imposed by the New York Court of Appeals.




                                                     7