Some guidance on management's duty to protect workers from third-party sexual harassment

In this unusual sexual harassment case, the plaintiff -- a Town Planner and Director of Development Services for the Town of Berlin, Connecticut -- complained that a Town resident (a local developer) was sending the Town a series of letters claiming that plaintiff had a substance abuse problem and she was involved in a sex scandal with a subordinate. Plaintiff ended up resigning over this. The district court said the Town's response to these offensive letters satisfied its obligations under Title VII. The Court of Appeals agrees with plaintiff that a jury may rule in her favor.

The case is Riggins v. Town of Berlin, a summary order issued on June 13. The letter-sender, Coccomo, did not work for the Town. But the Town still had an obligation to protect plaintiff. The Court of Appeals notes that Coccomo's letters "were replete with aggressive, lewd, demeaning, and sexually discriminatory language." In a footnote, the Court states it will not repeat that language verbatim "to avoid further victimizing Riggins through continued dissemination of [Coccomo's] vile attacks." The Town consulted with the police about these letters, determining the letters did not violate any criminal laws, but ultimately the Town decided it could not take any further action against Coccomo. Plaintiff ultimately resigned her position.

The Second Circuit (Leval, Merriam and Khan) notes the standard guiding an employer's duty to protect its staff from outside harassers.Citing Summa v. Hofstra Univ., 708 F.3d 115 (2d Cir. 2013), for this proposition, the Court says, "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."

Plaintiff can win the case because (1) while the Town brought Riggins' complaints to the police, those efforts focused on whether Coccomo could be criminally prosecuted, and not how to prevent further sexual harassment; (2) the Town otherwise took no steps that might dissuade Coccomo from further sexually harassing communications, (3) the Town did not undertake a Title VII investigation until after Riggins resigned; (4) no Town official told Coccomo that his communications constituted inappropriate sexual harassment and that he must stop; (5) the Town did not consult with an employment attorney on this matter until Riggins submitted her resignation letter, which meant she had to deal with this harassment for more than four years. 

While the Town argued that it had limited control over Coccomo, the Court of Appeals says the jury may find otherwise. "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." The Court of Appeals cites Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1244 (10th Cir. 2001), which states, "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.” Therefore, the Court says, "the Town’s degree of control over Coccomo’s actions is not dispositive of whether the Town’s remedial actions were sufficient and appropriate." And, other than calling the police, it appears the Town did nothing to dissuade Coccomo to stop his abusive behavior.