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, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) apply to sexual harassment and retaliation claims under New York City Administrative [Code] Section 8-107?" Zakrzewska v. The New School, 598 F.Supp.2d 426, 437-438 (S.D.N.Y. 2009). BACKGROUND

She further claims that from August 2005 through 2006, Pan covertly monitored her Internet usage at work in retaliation for her accusation. The facts underlying this lawsuit are set out in detail in the opinion of the United States District Court for the Southern District of New York ( seeZakrzewska v The New School, 598 F Supp 2d 426 [SD NY 2009]). On August 13, 2008, the School moved for summary judgment to dismiss Zakrzewska's complaint, arguing that it was not vicariously liable for Pan's alleged sexual harassment, and that Zakrzewska could not establish a prima facie case of retaliation.

She further claims that from August 2005 through 2006, Pan covertly monitored her Internet usage at work in retaliation for her accusation. The facts underlying this lawsuit are set out in detail in the opinion of the United States District Court for the Southern District of New York ( see Zakrzewska v The New School, 598 F Supp 2d 426 [SD NY 2009]). On August 13, 2008, the School moved for summary judgment to dismiss Zakrzewska's complaint, arguing that it was not vicariously liable for Pan's alleged sexual harassment, and that Zakrzewska could not establish a prima facie case of retaliation.

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, [ Ellerth, 524 U.S. at 765, 118 S.Ct. 2257] (2) "the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior," [ Faragher, 524 U.S. at 807, 118 S.Ct. 2275,] 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.Zakrzewska, 574 F.3d at 26 (quoting Zakrzewska, 598 F.Supp.2d 426, 432 (S.D.N.Y. 2009) (footnotes omitted)). The District Court concluded that the Faragher-Ellerth defense does not apply under the NYCHRL and that there were questions of material fact as to whether Zakrzewska suffered retaliation.

It is an open question in the Second Circuit whether employers must train employees on their policies to invoke the Faragher/Ellerth defense. Compare Zakrezewska v. The New Sch., 598 F.Supp.2d 426, 433 (S.D.N.Y. 2009), with Pugni v. Reader's Dig. Ass'n, Inc., No. 05-CV-8026, 2007 WL 1087183, at *18 (S.D.N.Y. Apr. 9, 2007). At a minimum, however, the existence (or lack thereof) of trainings can help inform a court's analysis of whether an employer's policies were meaningfully disseminated and enforced-and here, a trier of fact could reasonably conclude that the Town did not undertake significant efforts to publicize its policies until plaintiff sued.

Unlike Title VII and the NYSHRL, NYCHRL retaliation claims are analyzed under a different, more lenient standard. To establish a prima facie case of retaliation under the NYCHRL, a plaintiff must show “(1) participation in a protected activity, (2) knowledge of the protected activity by a person to whom the NYCHRL applies, (3) action with respect to the plaintiff that would be reasonably likely to deter a person from engaging in protected activity, and (4) a causal connection between the protected activity and the deterrent action.” Zakrzewska v. New School, 598 F.Supp.2d 426, 436 (S.D.N.Y. 2009) (citing Cesar v. Highland Care Ctr., Inc., 829 N.Y.S.2d 236, 238 (App. Div. 2007))); see also Mihalik, 715 F.3d at 112 (“[T]o prevail on a retaliation claim under the NYCHRL, the plaintiff must show that she took an action opposing her employer's discrimination, and that, as a result, the employer engaged in conduct that was reasonably likely to deter a person from engaging in such action.” (citations omitted) (first citing Albunio v. City of New York, 16 N.Y.3d 472, 479 (2011); and then citing Williams, 872 N.Y.S.2d at 33-34)); Smith v. City of New York, 385 F.Supp.3d 323, 345-46 (S.D.N.Y. 2019) (“The elements of a prima facie case of retaliation under Title VII, the NYSHRL, and the NYCHRL are ‘identical,' except that the NYCHRL employs a broader standard of an ‘adverse employment action' than its federal and state counterparts.” (quoting Nieblas-Love v. N.Y.C. Hous. Auth., 165 F.Sup

Tantaros , 465 F. Supp. 3d at 391 (quoting Balintulo v. Daimler AG , 727 F.3d 174, 186 (2d Cir. 2013) ); see alsoBenoit , 959 F.3d at 508 ("[T]here is ample ground for difference of opinion as to whether New York law recognizes the availability of medical monitoring for a claim based solely on property damage."); Mei Xing Yu v. Hasaki Rest., Inc. , 874 F.3d 94, 98 (2d Cir. 2017) (concluding that there was substantial ground for difference of opinion demonstrated by "the differing rulings within this Circuit"); Zakrzewska v. New Sch. , 574 F.3d 24, 27 (2d Cir. 2009) (granting a motion for interlocutory appeal based on the district court's statement that its "conclusion is not free from doubt" (quoting Zakrzewska v. The New Sch. , 598 F. Supp. 2d 426, 437 (S.D.N.Y. 2009) )); Weber v. United States , 484 F.3d 154, 159 (2d Cir. 2007) (stating that part of Congress’ intent in passing section 1292(b) was "to assure the prompt resolution of knotty legal problems"); Seneca Nation v. Cuomo , 484 F.Supp.3d 65, 78 (W.D.N.Y. 2020) (noting a substantial ground for opinion where the case law was "less than crystal clear"). "[I]t is the duty of the district judge to analyze the strength of the arguments in opposition to the challenged ruling when deciding whether the issue for appeal is truly one on which there is a substantial ground for dispute."

Plaintiff has carried her burden to show that there are genuine issues of material fact as to whether Mullen could be characterized as Plaintiff's supervisor for purposes of this analysis. Zakrzewska v. The New Sch., 598 F. Supp. 2d 426, 437 (S.D.N.Y. 2009) (denying employer summary judgment based in part on the existence of "evidence from which a jury could conclude that [the alleged harasser] was a supervisory or managerial employee"), certified question answered, judgment aff'd sub nom. Zakrzewska v. New Sch., 620 F.3d 168 (2d Cir. 2010).

Where this is the case, "local law on its face appears to impose vicarious liability on an employer ... without regard to whether the employer or another of its managers or supervisors knew or should have known" of the discriminatory acts. Zakrzewska v. The New School, 598 F.Supp.2d 426, 434 (S.D.N.Y. 2009), aff'd, 620 F.3d 168 (2010) ; see Gorman, 146 F.Supp.3d at 531 (imputing supervisor's discriminatory liability to company pursuant to § 8-107(13) ). Of course, the facts developed in discovery may prove otherwise. Granger argues that "Chau's SAC offers no theory of liability" against Granger Management Holdings, LLC, and asks for claims against the holding company to be dismissed on that basis.

As under federal and state law, to succeed on their NYCHRL claims against the City, Plaintiffs must establish that their supervisors knew or should have known of the actionable conduct and failed to take appropriate steps to stop it. See Zakrzewska v. New Sch., 598 F. Supp. 2d 426, 434 (S.D.N.Y. 2009)(under the NYCHRL, an employer will be liable for the discriminatory act of a co-workers only if "a managerial or supervisory employee knew of and acquiesced in such conduct or should have known of what was going on an failed to take reasonable preventive measures."). V. Plaintiffs Fail to State a Monell Claim Against The City