Zakrzewska v. New School
574 F3d 24, 2009 U.S. App. LEXIS 16597, 106 Fair Empl. Prac. Cas. (BNA) 1494 (2009)
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Rule of Law:
A federal court may certify an unsettled, significant, and determinative question of state law to that state's highest court when there is no controlling precedent, particularly when the issue is of considerable importance to the state and its resolution will control the outcome of the case.
Facts:
- Dominika Zakrzewska was an employee of The New School (“TNS”).
- Zakrzewska alleged that her co-worker, Kwang-Wen Pan, sexually harassed her and retaliated against her.
- Zakrzewska asserted that Pan exercised managerial or supervisory responsibility over her.
- Zakrzewska's claims were based exclusively on the New York City Human Rights Law (NYCHRL), not federal Title VII.
Procedural Posture:
- Dominika Zakrzewska sued her employer, The New School (TNS), and a co-worker in the U.S. District Court for the Southern District of New York, alleging violations of the New York City Human Rights Law.
- TNS filed a motion for summary judgment, arguing it was protected from liability by the Faragher-Ellerth affirmative defense.
- The District Court found that TNS would be entitled to summary judgment if the defense applied, but held that the defense was inconsistent with the plain language of the city law and thus did not apply.
- The District Court denied TNS's motion for summary judgment.
- Concluding the issue was a controlling question of law with substantial grounds for disagreement, the District Court certified the question for an interlocutory appeal to the U.S. Court of Appeals for the Second Circuit.
- The Second Circuit granted TNS's petition for leave to appeal.
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Issue:
Is certification to the New York Court of Appeals appropriate to determine whether the Faragher-Ellerth affirmative defense, available under federal Title VII, applies to sexual harassment and retaliation claims brought under the New York City Human Rights Law (NYCHRL)?
Opinions:
Majority - Per Curiam
Yes. Certification to the New York Court of Appeals is appropriate because the question of whether the Faragher-Ellerth defense applies to the NYCHRL is an unsettled, significant, and controlling issue of state law. The court reasoned that this action is proper based on a three-factor analysis: (1) there is an absence of authoritative state court decisions, as the New York Court of Appeals has not addressed this question; (2) the issue is of considerable importance to the state, as many employment discrimination cases are brought under state and city laws; and (3) the capacity of certification to resolve the litigation is high, as the answer will determine whether the case against TNS is dismissed. By certifying the question, the court shows deference to the state's highest court on an important matter of state statutory interpretation, avoiding a federal court prediction of state law.
Analysis:
This opinion illustrates the procedural mechanism of certification and highlights the principles of federalism and comity between federal and state courts. It demonstrates that when a federal court, typically sitting in diversity jurisdiction, confronts a novel and determinative issue of state law, it may defer to the state's highest court for an authoritative ruling. This practice avoids having federal courts make uncertain 'Erie guesses' about state law that could create conflicting precedents and ensures that state law is interpreted uniformly by the body with ultimate authority. The decision underscores the reluctance of federal courts to legislate from the bench on matters of state policy, especially in areas as significant as employment discrimination standards.
