In Cain v. Denis Richard McDonough, Secretary of Veterans Affairs, Department of Veterans Affairs, 2024 WL 5165548 (2d Cir. Dec. 19, 2024), the U.S. Court of Appeals for the Second Circuit affirmed a lower court’s award of summary judgment to defendant on plaintiff’s hostile work environment claim asserted under Title VII of the Civil Rights Act of 1964.
This decision is instructive for assessing whether alleged wrongful conduct may be imputed to the employer. From the decision:
When an individual sues their employer under Title VII, the plaintiff must show “a specific basis … for imputing the objectionable conduct to the employer.” Tolbert v. Smith, 790 F.3d 427, 439 (2d Cir. 2015).1 “An employer’s liability for hostile work environment claims depends on whether the underlying harassment is perpetrated by the plaintiff’s supervisor or [the plaintiff’s] non-supervisory co-workers.” Wiercinski v. Mangia 57, Inc., 787 F.3d 106, 113 (2d Cir. 2015). “[W]hen the harassment is attributable to a co-worker … the employer will be held liable only for its own negligence.” Distasio v. Perkin Elmer Corp., 157 F.3d 55, 63 (2d Cir. 1998).
The district court determined that White was Cain’s co-worker. Cain, 2023 WL 5110249, at *8. Because Cain does not challenge that conclusion on appeal, we assume without deciding that White is Cain’s co-worker. Therefore, Cain “must demonstrate that her employer failed to provide a reasonable avenue for complaint or that it knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action.” Duch v. Jakubek, 588 F.3d 757, 762 (2d Cir. 2009).
The following facts are undisputed for purposes of defendants’ summary judgment motion. After Cain told White that she was not interested in a sexual relationship with him, he served as her first-line supervisor for one day. At the end of their shift, White sent an email to the VA’s police chief complaining of Cain’s alleged poor performance. The next day, May 3, 2019, Cain’s first-line supervisor, Lieutenant Robin Lawrence, investigated White’s allegations and concluded that they were not true. When Lawrence first reached out to Cain about White’s email, Cain did not tell Lawrence about White’s sexual overtures. On Sunday, May 5, 2019, Cain reported White’s conduct to Lawrence, who immediately informed the VA’s police chief. The next day, May 6, 2019, Cain gave a statement to the criminal investigator and deputy chief, which Cain signed on May 7, 2019. Also on May 6, the VA began an investigation, and then took the following actions: changed Cain’s shift so that she was not working the same shift as White, took away White’s service weapon and removed his access to the weapon locker, relocated White to an office in another wing of the building, and instructed White to stay in that wing and not to come into Cain’s office area.Cain’s argument focuses on what happened next. Three times, White came into the office area near Cain’s desk after the stay-away order. In the first two instances, White came to the administrative area near Cain’s cubicle, and either shuffled papers or lingered near her. He did not speak to, touch, or attempt to touch Cain. Cain did not report his conduct. On the third occasion, White came to the same area, shuffled papers, and remained for a shorter period of time. Cain reported these incidents to the police chief. In response, the chief had another conversation with White and told him that he could not spend time in the area near Cain’s desk. If he had something to drop off in the administrative office, he should “drop it off and go.” App’x at 127. The chief told Cain that on occasion White may have to come to the administrative office near Cain’s work area, but he would not need to stay near Cain’s desk for any length of time. After that, Cain had no further problems; White only came to her office area a few times, and each visit was very brief.
Cain argues that the VA is liable because its response to her complaint of sexual harassment by White was inadequate. On these facts, we disagree. The VA instituted a formal investigation within one business day after Cain reported the harassment. The VA took the allegations seriously. And the VA’s response was multifaceted and included steps to prevent Cain and White from working overlapping shifts,2 relocating White to a different wing of the building, taking away White’s service weapon, and requiring White to stay away from Cain’s work area. As soon as Cain notified her supervisors that White had stood near her desk following the stay-away order, they took effective action to ensure that it didn’t happen again. Moreover, at the conclusion of its investigation the VA placed White on a last chance agreement, which included a demotion from lieutenant to line officer.
The court proceeded to contrast the defendant’s response here to cases in which it found that a reasonable juror could find that an employer failed to take appropriate remedial action.