By Mark Hamblett

December 08, 2009 - A supervisor’s purposeful ignorance of possible sexual harassment will not shield an employer from liability under Title VII, the U.S. Court of Appeals for the Second Circuit has ruled.

Vacating part of the dismissal of a sexual harassment lawsuit brought against the New York State Office of Court Administration, the circuit said a court officer presented enough evidence to proceed on a claim that her supervisor at the Midtown Community Court knew or should have know she was being harassed by another officer.

Judges Pierre N. Leval, Jose A. Cabranes and Peter W. Hall decided the appeal in Duch v. Jakubek, 07-3503-cv.

The Second Circuit decision appears on page 39 of the print edition of today’s Law Journal.

Karen Duch had been working at the Midtown Community Court for two years when, on Sept. 25, 2001, she had a consensual sexual encounter with fellow court officer Brian Kohn.

When she informed Mr. Kohn the next day that the encounter had been a "mistake" and she did not want further relations, Mr. Kohn allegedly proceeded over the next few months to make a series of unwanted sexual advances that included physical contact, sexually graphic language and physical gestures.

When Ms. Duch informed Lieutenant Edward Jakubek in October 2001 that she wanted to avoid working with Mr. Kohn, Lieutenant Jakubek approached Mr. Kohn and asked him why that was the case and Mr. Kohn allegedly responded, "Well, maybe I did something or said something that I should not have."

Ms. Duch said Lieutenant Jakubek reported back that he had responded by telling Mr. Kohn to "cut it out and grow up."

When Lieutenant Jakubek pressed Ms. Duch as to why she had a problem working with Mr. Kohn, she became emotional and said, "I can’t talk about it." She said Lieutenant Jakubek then replied, "That’s good because I don’t want to know what happened," and then laughed.

Later in October 2001, Ms. Duch approached the Community Court Equal Employment Opportunity Liaison, court officer Rosemary Christiano. Ms. Duch told Ms. Christiano that she "absolutely" did not want to report Mr. Kohn. Ms. Christiano complied and allegedly gave Ms. Duch inappropriate advice, including asking why she "didn’t…just grab [Kohn] and hurt him."

In 2002, Ms. Duch filed a discrimination complaint against Mr. Kohn with the OCA’s Office of the Special Inspector General for Bias Matters, but the complaint was dismissed when Ms. Duch, claiming she was medically unfit to testify, refused to submit to cross-examination.

Her federal lawsuit was dismissed by Southern District Judge Loretta Preska in August 2007. Ms. Duch appealed only the dismissal of her Title VII claims against Lieutenant Jakubek, OCA and the State of New York, and Judge Preska’s denial of her motion to amend and add state claims against Lieutenant Jakubek.

The major issue on appeal, Judge Cabranes said, was whether Ms. Duch "can impute the conduct that created the hostile work environment to her employer."

The circuit’s first ruling was to uphold Judge Preska’s finding that no reasonable jury could conclude that OCA failed to provide Ms. Duch with a reasonable avenue of complaint.

It then agreed with the lower court that Ms. Christiano did not breach a duty to Ms. Duch and, therefore, OCA could not be held accountable for Ms. Christiano’s inaction.

The same, however, was not true of Lieutenant Jakubek.

A jury, Judge Cabranes said, could reasonably find that the lieutenant "strongly suspected that it was sexual harassment on Kohn’s part that was responsible for Duch’s emotional reaction" and that "Jakubek understood the issue was ongoing."

Moreover, he said, a jury could find 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."

Therefore, Judge Cabranes said, "a reasonable jury could conclude that Duch’s employer had at least constructive knowledge of the sexual harassment directed at her."

Judge Cabranes cautioned that the court was not announcing "a new rule on liability for employers who receive nonspecific complaints of harassment from employees," for a "supervisor’s purposeful ignorance" can still lead to liability.

And contrary to the lower court’s ruling, the circuit found "a jury could also find that defendants’ response was unreasonable."

While Lieutenant Jakubek adjusted Ms. Kohn’s schedule, he said, "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."

The circuit concluded by ruling that Ms. Duch should be given leave to amend. It then remanded the case.

David Bookstaver, the spokesman for the Office of Court Administration, said OCA does not comment on ongoing litigation.

Mathew Paulose Jr. of Koehler & Isaacs represented Ms. Duch.

"Our client is relieved that the Second Circuit saw through OCA’s efforts to blame the victim—a common tactic used in sexual harassment cases," Mr. Paulose said in a statement. "Our client now looks forward to being heard at trial."

Mr. Paulose added, "On a larger scale, this case reinforces the idea that summary judgment is just downright inappropriate in employment cases. In many civil rights cases where credibility is central, such as use-of-force cases, judges routinely discourage summary judgment motions. We hope the judges start doing the same in employment cases where credibility is equally important."

Assistant Solicitor General Patrick J. Walsh represented the state.

Anjana Samant of Outten & Golden filed an amicus curiae brief for the National Employment Lawyers Association.