We previously certified to the New York Court of Appeals the question of whether the affirmative defense to employer liability articulated in
Faragher v. City of Boca Raton,
BACKGROUND
The facts and procedural history of this case are set forth in detail in our earlier opinion in this case, with which we assume the parties’ familiarity.
See Zakrzewska,
Plaintiff Dominika Zakrzewska sued her co-worker, dеfendant Kwang-Wen Pan, and her former employer, defendant-apрellant The New School (“the School”), alleging sexual harassment and retaliation in violation of the New York City Human Rights Law (“NYCHRL”), which is codified in pаrt in the New York City Administrative Code, see N.Y.C. AD.C. § 8-107.
The School moved for summary judgment on both thе harassment and retaliation claims. In its motion for summary judgment, the Schoоl argued that summary judgment should be granted because (1) the affirmative defеnse to employer liability for sexual harassment cases arising under Titlе VII set forth in
Faragher
and
Ellerth
applies under the NYCHRL,
2
(2) that the School satisfied the requirements of the
Faragher-Ellerth
defense, and (3) with respect to the retaliation claim, еven if the
Faragher-Ellerth
de
The District Court concluded that the
Faragher-Ellerth
defense does not apply under the NYCHRL and that there werе questions of material fact as to whether Zakrzewska suffered retaliation. Accordingly, the District Court denied the School’s motion for summary judgment on both the harassment and retaliation claims.
See Zakrzewska v. The New School,
On appeal before our Court, we certified the same question — namely, whether the affirmative defense set forth in
Faragher
and
Ellerth
applies under the NYCHRL — ■ to the New York Court of Appeals.
See Zakrzewska,
The New York Court of Appeals then answered our certified question in the negative concluding that the
Faragher-Ellerth
defense does not apply in cases brought under the NYCHRL.
See Zakrzewska v. The New School,
DISCUSSION
In denying defendant’s motion for summary judgment, the District Court concluded that the School was not entitled to summary judgment becausе the Faragher-Ellerth defense does not apply to claims brought under the NYCHRL. The New York Court of Appeals has now confirmed that such a defense doеs not apply under the NYCHRL. Accordingly, we conclude that the District Court did not err in denying defendant’s motion for summary judgment.
CONCLUSION
For the reasons stated above, we affirm the January 26, 2009 order of the District Court denying defendant’s motion for summary judgment, and we remand the cause to the District Court for further proсeedings.
Notes
. We have jurisdiction to review this order under 28 U.S.C. § 1292(b).
. In our earlier opinion in this case, we quoted the District Court’s definition of the Faragher-Ellerth defense:
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 рrevent and correct promptly any sexually harassing behavior,” [Faragher,524 U.S. at 807 ,118 S.Ct. 2275 ,] аnd (3) “the plaintiff employee unreasonably failed to take advаntage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise!, id.T
Zakrzewska,
. The District Court did not certify the question of whether plaintiff stated a prima facie claim of retaliation, so we lack jurisdiction to consider it here.