In Riggins v. Town of Berlin, 2024 WL 2972896 (2d Cir. June 13, 2024), the U.S. Court of Appeals for the Second Circuit vacated the lower court’s summary judgment dismissing plaintiff’s complaint alleging a hostile work environment sexual harassment.
In this case, in sum, plaintiff alleges, among other things, that her employer (the Town of Berlin, Connecticut) discriminated against her based on sex by failing to take appropriate action to protect her against lewd and defamatory harassment by Town resident and local building contractor Thomas Coccomo.
From the decision:
There is no dispute that the Town provided a reasonable avenue for complaint and that the Town was aware of the harassment. Accordingly, the question before us is whether there is an issue of triable fact as to whether the Town’s actions in response to Coccomo’s harassment were appropriate. In making that determination, we look to whether the Town’s “response was immediate or timely and appropriate in light of the circumstances, particularly the level of control and legal responsibility” the Town had over Coccomo’s behavior. Id. (citation and quotation marks omitted).
We disagree with the District Court’s conclusion that “a jury could not reasonably find that the Town failed to take concrete action that could have prevented Coccomo’s harassment.” Riggins, 2023 WL 3173768, at *4. Although there is no dispute that the Town took some action in response to Coccomo’s conduct, upon de novo review, we find that there is evidence in the record from which a reasonable jury could conclude that those actions were not sufficient in light of the circumstances.
For example, although the Town brought Riggins’ complaints to the police, those efforts focused on whether Coccomo could be criminally prosecuted, rather than on preventing further sexual harassment of Riggins. See Cox v. Onondaga Cnty. Sheriff’s Dep’t, 760 F.3d 139, 149 (2d Cir. 2014) (“[T]he primary purpose of Title VII is not to provide redress but to avoid harm.” (citation and quotation marks omitted)). During the period of Riggins’ employment, the Town failed to investigate whether there were steps, other than criminal prosecution, the Town could reasonably take that might dissuade Coccomo from further sexually harassing communications. The Town also failed to investigate whether Coccomo’s communications violated the Town’s obligations under Title VII or CFEPA until after Riggins resigned. This failure alone creates a triable issue of fact as to whether the Town’s response was appropriate. See Malik v. Carrier Corp., 202 F.3d 97, 105 (2d Cir. 2000) (“[A]n employer’s investigation of a sexual harassment complaint is not a gratuitous or optional undertaking; under federal law, an employer’s failure to investigate may allow a jury to impose liability on the employer.”).
Additionally, neither Attorney Coppola nor any other Town official told Coccomo directly that his accusations against Riggins were inappropriate sexual harassment and that he must stop. When Attorney Coppola first met with Coccomo and his attorney to discuss Coccomo’s inappropriate behavior towards Town employees, Attorney Coppola was unaware of Coccomo’s sexual harassment of Riggins. The Town also failed to consult an employment attorney about the problem until after Riggins submitted her resignation, that is, after Riggins endured more than four years of Coccomo’s harassment. Moreover, having been confronted with allegations that Riggins had engaged in inappropriate conduct, the Town could have investigated those allegations so that it could put an end to any actual misconduct by Riggins or determine that Coccomo’s accusations were false and put an end to his harassment. The record contains no evidence of any such investigation during Riggins’ tenure with the Town.
The Town asserts that liability for Coccomo’s actions cannot be imputed to it because it “did not have a high degree of control, let alone any control over Coccomo’s” actions. Appellee’s Br. at 28. But the Town did have exclusive control over its workplace and over the email system to which Coccomo sent many of the harassing communications. And the Town presumably could dictate the way in which Coccomo was permitted to communicate with Town employees. See, e.g., Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1244 (10th Cir. 2001) (“The focus is not on the conduct itself but on the employer’s behavior in response; a hospital cannot control every act of its patients, but it does control the environment at large.”). Thus, the Town’s degree of control over Coccomo’s actions is not dispositive of whether the Town’s remedial actions were sufficient and appropriate.
Furthermore, although the Town may not have had the ability to control all of Coccomo’s behavior, it does not follow that the Town lacked any ability to attempt to dissuade Coccomo from continuing his abusive conduct. Indeed, it does not appear that the Town made any effort to determine what its options were, other than inquiring whether criminal charges could be brought against Coccomo. At no point during Riggins’ tenure did the Town direct its employment counsel to assess its options, nor did it consider civil litigation or other action against Coccomo.
The court thus concluded that “[v]iewing the record in the light most favorable to Riggins, a reasonable jury could conclude that the Town’s responses to her complaints were not appropriate” and, therefore, that summary judgment was not warranted.