2nd Circuit lambastes employer: ‘You should have known!’
Amy M. McLaughlin, Kendall Hoechst, Editors
Dinse, Knapp & McAndrew, P.C., Burlington
by Amy McLaughlin
The “#MeToo” movement is sweeping across the country and calling well-deserved attention to the issue of sexual harassment. The U.S. Court of Appeals for the 2nd Circuit (whose rulings apply to all Vermont employers) is following suit. In a recent decision, the 2nd Circuit chided an employer for not doing enough to monitor the work environment and ensure it was harassment-free. Employers, pay attention: This case illustrates the new standard of heightened awareness.
In late 1999 or early 2000, a female dental assistant complained to the Connecticut Commission on Human Rights and Opportunities that Dr. Michael Young, the dentist with whom she worked at University of Connecticut Health Center (UConn Health), had harassed her. The dental assistant alleged that Young sent her gifts and notes saying things like “You’re beautiful” or “I love your smile.”
The complaint resulted in a “last-chance” agreement between Young and UConn Health that required Young to see a psychiatrist and imposed a 10-day suspension on him for “offensive conduct towards a [coworker], poor judgment, and not cooperating during the initial investigation.” The agreement further provided that he could be fired for “any future instances of unsolicited flirtatious letters or comments to any employee, or any behavior similar to this.”
When he returned to work following his suspension, Young received no additional attention, monitoring, or training. Further, UConn Health never informed his subsequent supervisors that he had been the subject of a sexual harassment complaint or that he was disciplined as a result of the complaint, including being put on a last-chance agreement.
Fast-forward to March 2008, when UConn Health hired Mindy MacCluskey as a dental assistant. MacCluskey began working with Young two days a week at Manson Youth Institute, a Connecticut Department of Corrections facility. Approximately six months after she began working at Manson, Young started making comments about MacCluskey’s appearance and what she was wearing, called her “young and beautiful,” and commented that he was surprised she had three children. He also asked her personal questions that made her uncomfortable, such as inquiring about her relationship with her children’s father and asking whether “anybody has ever cheated.” Moreover, he stood very close to her in a way she described as “creepy.”
MacCluskey reported Young’s conduct to both a coworker and a nurse who was also a union representative. Someone then reported to Dr. Alexis Gendell, who supervised both Young and MacCluskey at Manson, that there was a concern at the dental clinic. Gendell stopped MacCluskey in the hallway and asked “if there was a situation, is everything [OK],” to which MacCluskey replied, “There is a situation and I’m all set. It is under control.”
UConn Health never made Gendell aware of the earlier sexual harassment complaint against Young or his last-chance agreement. Gendell didn’t follow up on the conversation with MacCluskey to inquire about the nature of the concern at the dental clinic, make any effort to investigate whether Young had a history of “concerns” with other coworkers, or monitor Young’s conduct.
Because she needed more hours to support her family, in August 2010, MacCluskey requested a transfer to MacDougall-Walker Correctional Institution, where she would be assigned to work with Young three days a week. Her transfer request was approved, and she began working at MacDougall-Walker in December 2010. According to MacCluskey, Young’s behavior toward her escalated over a series of months and included the following incidents:
- He repeatedly commented on her appearance and asked her out.
- He brought lingerie and bathing suit catalogs to work and asked her to model the clothing in them.
- He sent her e-mails asking how he could make her “blush”; telling her that there were “rules” for her position, such as kissing him before and when she left work; asking her about “crazy hookups”; and telling her, “I love you.”
- He repeatedly bumped into her, touched her hair and hands, gave her shoulder rubs, stared at her, and sent her a Valentine’s Day gift.
- On one occasion in 2011, he stood in a doorway and blocked her from leaving a room, and when she tried to leave, he grabbed her waist, pulled her close, and put his hand up her shirt.
After Young put his hand up her shirt, MacCluskey reported the sexual harassment to Rikel Lightner, her supervisor at MacDougall-Walker, and filed an incident report. Lightner, in turn, reported the complaint to UConn Health. Young was placed on paid administrative leave while UConn Health conducted an investigation. After the investigation revealed that he had violated the internal sexual harassment policy, Young chose to resign rather than be fired.
In September 2013, MacCluskey filed a sexual harassment lawsuit against UConn Health. The case went to trial, and the jury found in MacCluskey’s favor, awarding her $200,000 in damages. UConn Health appealed the jury’s verdict to the 2nd Circuit, arguing there was no legal basis for imputing liability to it because it had no knowledge of Young’s harassment of MacCluskey before she complained in 2011 after the incident in which he put his hand up her shirt.
2nd Circuit’s decision
To prevail on a hostile work environment claim, an employee must prove that (1) the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of her work environment and (2) there is a specific basis for imputing the conduct that created the hostile environment to the employer. When a hostile work environment claim involves conduct by a coworker rather than a supervisor, the employer is liable only for its own failure to exercise reasonable care to address the harassment. Therefore, the test is whether the employer failed to provide a reasonable avenue for complaint or whether it knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action.
On appeal, it was undisputed that UConn Health provided a reasonable avenue for complaint, and Mac- Cluskey didn’t report Young’s conduct prior to 2011. The question, then, was whether UConn Health had constructive notice of the harassment. In other words, the crucial issue the appellate court faced was whether UConn Health should have known about the harassment in the exercise of reasonable care.
After considering all the evidence presented at trial, the 2nd Circuit concluded that there was sufficient evidence for a reasonable jury to find that UConn Health should have, in the exercise of reasonable care, known about Young’s harassment. The court specifically highlighted the following facts:
- After Young sexually harassed another assistant in 2000, he was disciplined and subjected to a last-chance agreement.
- Young’s supervisors, including Gendell, weren’t made aware of the last-chance agreement.
- Young’s supervisors should have been monitoring him.
- From 2009 through 2011, Young made inappropriate comments about MacCluskey’s appearance, inquired about her personal life, and invaded her personal space.
- At some time between 2009 and 2010, MacCluskey complained about Young’s behavior to two coworkers.
- Gendell was alerted to a possible issue at the dental clinic involving MacCluskey, but when she asked about the “situation,” she did so in a hallway rather than a private setting and didn’t ask follow-up questions, raise the issue again, or take any further action.
- Had Gendell been informed about Young’s earlier harassing conduct and his last-chance agreement, she would have conducted a more robust inquiry when she became aware that there was a “situation.”
Given that evidence, the court concluded that UConn Health should have known about Young’s harassment of MacCluskey in 2009 or 2010 and should have taken steps to remediate the situation.
Given today’s climate in which an ever-increasing number of sexual harassment allegations are being made, employers need to be especially cautious. Certainly, the holding in this case significantly reinforces that need.
Even though UConn Health had an antiharassment policy and MacCluskey didn’t avail herself of its provisions until more than two years after Young began harassing her, the employer was still held liable. The court concluded that given its knowledge of Young’s past harassing behavior, UConn Health didn’t do enough to ensure a harassment-free work environment and protect its employees. For example, it could have monitored Young’s behavior, informed his new supervisors of the last-chance agreement, and, perhaps most important, thoroughly delved into MacCluskey’s report of a “situation.”
Bottom line: It’s clear from this case that today’s environment requires employers to take a proactive approach. You must always be mindful, attentive, and cognizant of the work environment, and if there’s any potential issue that might rise to the level of concerning behavior, you must take immediate steps to address it.
Amy McLaughlin can be reached at email@example.com or 802-859-7031.