Summary Orders (in other words, decisions with no precedential value) by the Second Circuit typically are not worth noting. However, a decision released today is telling for the court’s view of race and gender discrimination cases and it can be cited by parties under certain limitations.

In Williams v. Consolidated Edison of New York, the court reversed a lower court’s decision granting summary judgment to the employer on race and gender harassment grounds.  While the court may have been skeptical of the claims, it found that the amount of evidence presented by the Plaintiff — if believed — could support a claim of racial and gender harassment.

In approximately three years at the company: (1) one supervisor…, referred to Williams as a “black b****” on more than one occasion and … another supervisor,
referred to her as a “b****”; (2) [one supervisor] directed gender-based verbal abuse at Williams…; (3) [one supervisor insinuated that Williams and [another employee] were having a sexual relationship; (4) several male co-workers repeatedly used offensive and derogatory terms for women, such as “b***” and “c***”; (5) women encountered pornographic materials in the workplace on at least several  occasions; (6) Williams and [another employee] experienced tampering and sabotage of their equipment; (7) male co-workers were unwelcoming to women and commented that they did not belong in the Brooklyn Flush unit; (8) male workers sought to avoid shifts with women and supervisors would honor their requests; (9) at least one employee made comments to the effect that supervisors should let the men know when women were menstruating; and (10) women were not provided with adequate locker room facilities for months, until October 2001, although the men were. In addition, one of Ms. Williams’s coworkers… states that she, too, was sexually harassed, including that she was called a “b**” and a “cunt” on a regular basis, that supervisors ignored her complaints about this verbal
abuse, and that one supervisor threatened to suspend her from her job if she continued to complain.

Obviously, as readers of this blog know, these allegations are merely that — allegations.  But the language used here and the different types of harassment alleged, was obviously more than enough for the Second Circuit to reverse.

The Court also addressed the employer’s response to co-worker harassment:

Whether Con Ed’s response to Williams’s complaints about a sexually and racially hostile work environment — and the information it obtained in the process of investigating her complaints — constituted “appropriate remedial action” is subject to reasonable dispute on the record before us. During the first human resources investigation into Williams’s complaints in 2002, several of Williams’s co-workers verified her allegations that men sought to avoid working with women and supervisors honored their requests and that African-American employees were sent more frequently to high-crime neighborhoods. Yet inexplicably, the report summarizing the investigation did not discuss these co-worker accounts in reaching its conclusion that there was no record of discriminatory work assignments. Given the information that Con Ed received during its investigation and the absence of anything in the record indicating whether Con Ed followed up on this information, a reasonable juror could find that Con Ed failed to take prompt and appropriate remedial action in response to substantiated allegations of sexual and racial hostility in the workplace.

It’s easy to look back on this case and point out that the employer should’ve done more.  And indeed, an investigation that may look thorough at the time, can appear to be incomplete given a the context later on.  However, the case is a further illustration about the importance of conducting a thorough investigation when complaints of harassment are made and detailing that investigation in a written report.  Whether that still would’ve been enough here is questionable but it might have helped. 

Moreover, when a second complaint was made by Williams and investigated until Williams said she was too "stressed" to continue, the court found that this second investigation was also subject to dispute and the employer may not have done enough.

When Williams complained a second time to human resources about being subject to a sexually hostile work environment, the human resources officer closed his investigation after speaking only to Williams’s supervisor. That action was based in part on Williams’s decision not to follow up with him because she was “too stressed.” A reasonable fact-finder could conclude this second investigation was a perfunctory and inappropriate response to Williams’s hostile work environment allegations, which Con Ed arguably should have investigated regardless of whether Williams had the time or the energy to pursue it further.

This illustrates the importance of continuing a sexual harassment investigation to its conclusion — regardless of whether a complainant later refuses to cooperate or asks that the investigation be conducted in private. The court’s decision suggests that employers have an independent and affirmative obligation to investigate claims of harassment, regardless of the complainant’s wishes, once it is made aware of them

What is also notable about the case is that the court affirmed summary judgment to the employer on the retaliation claims finding them either time-barred or without merit.  In essence, the court found that the reasons given by the employer for the discipline of the employee were legitimate. 

Williams admitted that she made statements referring to the possibility of driving a truck into the trailers of the Brooklyn flush facility and to going “postal” at work — comments that invoke images of violence against her superiors and that could be understood as veiled threats. Furthermore, three coworkers reported that those comments were even more explicitly threatening than Williams admitted. Based on its zero tolerance policy of violence or threats of violence in the workplace, [the employer] took disciplinary action.

It’s unfortunate that this case cannot be cited for precedent because it speaks to some issues that could use further clarification by the Second Circuit. But employers and in-house counsel can still take the lessons of the case to heart.

(H/T – Wait A Second!)