contrast, where a low-level supervisor does not rely on his supervisory authority to carry
out the harassment, or a co-employee of the plaintiff is the alleged harasser, an employer
will not be liable unless the employer either provided no reasonable avenue of complaint
or knew of the harassment but did nothing about it" (Tomka v Seiler Corp.,
supra, 66 F3d at 1305, citing Meritor Savings Bank v Vinson, supra, 477
US at 72, other citations omitted; see also Espaillat v Breli Originals,
supra, 227 AD2d at 267; Thompson v Lamprecht Transport, n.o.r., 2004
WL 6063732 [Sup Ct, Queens Co, 2004]).
As discussed above, it has yet to be determined if David was plaintiff's supervisor, a
low-level supervisor, or any kind of supervisor at all, but under the applicable standards,
for purposes of defendants' summary judgment motion the court must consider David to
have been plaintiff's supervisor.
(A). Bulletproof
In this case, taking plaintiff's version of the facts as true, her job as a bookkeeper for
Bulletproof, which was at best amorphously defined by Jeffrey, included doing some
Perfect World accounting work for David. Under the foregoing employer liability test,
since in plaintiff's eyes David had the apparent authority to supervise her, the first part of
the test must be used. It is possible for a jury to apply this test and find, based solely on
plaintiff's testimony and David's silence, that Bulletproof was vicariously liable for
David's harassment of plaintiff.
However, even assuming that plaintiff had stated a cause of action against
Bulletproof as her employer based on David being her supervisor, as discussed below,
the court finds that Bulletproof has shown its entitlement to summary judgment with