Societe Generale Groupe, 39 AD3d 404, 405-406 [1st Dept. 2007], citations
omitted; Short v Deutsche Bank
Securities, Inc., 79 AD3d 503, 504 [1st Dept 2010]; compare Sawicka v Catena, 79 AD3d
848, 849-850 [2d Dept 2010] [defendant deliberately made the working conditions
intolerable by installing a video camera in the restroom]). A prima facie case of
constructive discharge cannot be made without establishing a materially adverse
employment action (Messinger
v Girl Scouts of USA, 16 AD3d 314 [1st Dept 2005]). Since plaintiff testified
that Jeffrey did nothing to make her uncomfortable (see plaintiff's EBT, pp 50-51) and
David's only motivation was to make advances on her, not force her to quit her job (see
id.), she cannot show she was constructively discharged. In fact, plaintiff's
inability to show she was constructively discharged alone has been held to warrant
summary judgment in the employer's favor (cf. Ehmann v Good Samaritan Hospital
Medical Center, 90 AD3d 985, 985-986 [2d Dept 2011]).
(ii) Since plaintiff deprived Bulletproof of the opportunity to take "prompt corrective
action" by not informing anyone of David's harassment, she cannot show that Bulletproof
"acquiesced in the discriminating conduct or subsequently condoned it" instead of taking
corrective action (see Sormani v Orange County Community College, 240 AD2d
724, 725 [2d Dept 1997]). Here, there is absolutely no evidence — or even
allegation — that Bulletproof knew of David's alleged harassment, much less
acquiesced or condoned it, and plaintiff herself testified that she never informed her
employer of the situation (see Forrest v Jewish Guild for the Blind, supra, 3
NY3d at 311-312; contrast Goering v Nynex Information Resources Company,