Continued post-complaint sexual harassment does not always permit employer liability

A hostile work environment will not result in any damages, or even a jury trial, if the plaintiff cannot connect that work environment to the employer. This case is a good example of how it all works. In the end, plaintiff loses the case because the Court of Appeals determines the employer, the Veterans' Administration, acted reasonably after it learned that plaintiff was being harassed by a coworker who would not leave her alone.

The case is Cain v. McDonough, a summary order issued on December 19. Coworker White made sexual overtures toward plaintiff, but she rebuffed him. White then falsely wrote plaintiff up for misconduct (he was her temporary supervisor for one day). When plaintiff complained to management about White's harassment, the VA's police chief began an investigation almost immediately, and White was given a warning and they changed his shift to keep him away from plaintiff. The VA also took away his service weapon and had him work somewhere else in the building, warning him to stay away from plaintiff. 

The VA's swift response to plaintiff's harassment claim would normally be enough for the agency to defend this lawsuit. So plaintiff 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.” 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.

On this record, the employer is not liable for negligently handling plaintiff's harassment complaint. Here is how the Court of Appeals puts it:

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, 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.

Plaintiff argued that, in light of White's violation of the stay-away order, her case is comparable to another coworker harassment case, Whidbee v. Garzarelli Food Specialities, 232 F.3d 62 (2d Cir. 2000), a case that I argued 25 years ago. In that case, the harassment continued even after the plaintiffs complained about a coworker's racial comments. Summary judgment for the employer was reversed in that case because the manager did not speak to the offending employee for several days, during which time the harassing comments continued. After the manager gave the coworker a warning, he made further racially-harassing comments, and the manager told the plaintiffs he was unable to control the coworker's mouth and he did not know how to deal with the problem. While the manager then gave the coworker a written warning, the harassment continued, prompting the plaintiffs to quit their job. Whidbee stands for the proposition that the continued harassment after the plaintiffs' repeated complaints permits the inference that management's response was inadequate. 

Cain's case is not Whidbee, the Court of Appeals (Robinson, Nathan and Briccetti [D.J.]) holds, because "it is undisputed that White did not speak to or contact Cain after her initial complaint, that Cain did not report White’s coming near her desk the first two times he came to the administrative office area, and that once she reported these incidents, the police chief effectively ensured that White stayed away from Cain."

This Whidbee distinction may be the first time the Court of Appeals has held that continued harassment following management's attempts to stop the harassment does not always permit a finding of employer liability in coworker harassment cases. Every precedent has its limits, and the presidential reach of Whidbee is no exception.