was employed and paid by Bulletproof (see O'Connor v Davis, supra,
126 F3d at 115-116 [economic remuneration is determinative of employment status]).
Plaintiff's compensation and terms of employment were controlled by Jeffrey, who even
according to plaintiff, was probably unaware of David's harassment. David, plaintiff's
putative supervisor, had no role in Bulletproof and no control over plaintiff's salary or
terms of employment with Bulletproof, and plaintiff does not claim that he did, only that
she "believed" he was her "supervisor."
To hold an employer vicariously liable under federal and state law for a supervisor's
sexual harassment under a hostile environment theory, a plaintiff must first prove the
existence of a hostile environment as set forth above, and then "establish that the conduct
which created the hostile environment should be imputed to the employer" (Tomka v
Seiler Corp., supra, 66 F3d at 1305, citing Karibian v Columbia
University, 14 F3d 773, 779 [2d Cir 1994], cert den sub [*8]nom Trustees of Columbia University v Karibian, 512
US 1213 [1994]) and Meritor Savings Bank v Vinson, supra, 477 US at
64-65). "In Meritor, the Supreme Court declined to announce a definitive rule on
employer liability, holding instead that federal courts should be guided by common law
principles of agency.... [Using] Meritor 's general guidance [the Second Circuit
Court of Appeals] derive[d] the following rules of employer liability: if a plaintiff's
supervisor is the alleged harasser, an employer will be liable if the supervisor uses his
actual or apparent authority to further the harassment, or if the supervisor was otherwise
aided in accomplishing the harassment by the existence of the agency relationship.... By