respect to her first cause of action for sex discrimination under the state law.
Under federal and state law, an employer vicariously liable for the discriminatory
conduct of a managerial or supervisory employee may elude liability by asserting the
so-called Faragher-Ellerth defense (asserted by defendants herein without
naming it, as their fourth affirmative defense). For this defense to succeed, the employer
must show that (i) no adverse employment action (e.g., termination) was taken as
part of the sexual harassment; (ii) the employer took prompt corrective action; and, (iii)
the plaintiff unreasonably failed to avail herself of "corrective opportunities provided by
the employer or to avoid harm otherwise" (Zakrzewska v The New School, 14 NY3d 469, 476-477
[2010], citing Faragher v City of Boca Raton, 524 US 775 [1998] and
Burlington Industries v Ellerth, supra, 524 US 742). Here, Bulletproof
has established the applicability of Faragher-Ellerth.
(i). Plaintiff cannot substantiate her claim of constructive discharge, and there is no
evidence of any other adverse employment action. Plaintiff was not fired, she left of her
own [*9]volition. "Unless conditions are beyond
ordinary' discrimination, a complaining employee is expected to remain on the job while
seeking redress" (Garside v Hillside Family of Agencies, supra, at *13,
citations omitted). To state a claim for constructive discharge, plaintiff must allege facts
showing that a defendant "deliberately created working conditions so intolerable,
difficult or unpleasant that a reasonable person would have felt compelled to resign."...
Deliberate' is more than a lack of concern'; something beyond mere negligence or
ineffectiveness'" (Polidori v