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A recent decision by the U.S. Court of Appeals for the 1st Circuit provides guidance about an employer’s responsibility to discipline employees when another a co-worker reports they harassed him. The court emphasized that a plaintiff “must demonstrate that the employer knew or should have known about the harassment yet failed to take prompt and appropriate remedial action.” The 1st Circuit’s unanimous ruling in Wilson v. Moulison North Corp. upheld a March 2010 summary judgment ruling from the District of Maine in favor of the defendant employer, Moulison North. The plaintiff, Arthur Ray Wilson, who is African-American, alleged that he was subjected to a racially hostile environment while working as an electrician’s helper at Moulison North. Wilson worked at the electrical utility construction company from May through September 2006 and filed his lawsuit in October 2008. Wilson claimed the company violated Title VII of the Civil Rights Act of 1964. The appeal concerned the adequacy of Moulison North’s discipline of Wilson’s co-workers after Wilson reported on their racially derogatory remarks. Following that report, company owner Ken Moulison warned the harassers that he would fire them if they continued harassing Wilson. The appeal also addresses what constitutes adequate reporting of additional harassment that would prompt a company’s duty to take further disciplinary steps. Wilson claimed Moulison told him to direct future complaints to Ryan Polley, an employee Wilson believed was the foreman. Moulison North claimed Polley was simply the senior employee on the work sites. It claimed that Moulison told Wilson to bring future complaints directly to him and to let Polley know what had happened. Wilson claimed the co-workers did subsequently harass him, by contaminating his water, exposing him to live electrical wires and refusing to help him on the job site. Senior Judge Bruce Selya wrote that when the harassers are co-workers, the plaintiff “must demonstrate that the employer knew or should have known about the harassment yet failed to take prompt and appropriate remedial action.” He found that Wilson failed to make such a showing. Circuit Judge Michael Boudin and retired U.S. Supreme Court Justice David Souter, who sat by designation, joined the ruling. The company’s response to the initial harassment “was both swift and appropriate,” Selya wrote. “After hearing the plaintiff’s complaint, Moulison immediately looked into it, concluded that the misconduct had occurred, and reprimanded [the perpetrators] in very strong terms. He made it abundantly clear that any repetition of the misconduct would result in their dismissal,” Selya wrote. Selya noted that Title VII “does not invariably require termination or suspension as a response to harassment.” He also wrote that there’s no evidence that the perpetrators were repeat offenders, and the discipline was in line with the company’s anti-harassment policy. The panel concluded that “a reasonable jury could not find that the action Moulison took in response to the initial harassment was either untimely or inappropriate.” Selya’s opinion then addressed the subsequent incidents of harassment. According to the 1st Circuit, the company’s anti-harassment policy indicates that employees should inform either a supervisor or Ken Moulison about harassment. The opinion tackled whether Polley had the same authority as a supervisor. “In the absence of the requisite authority, a title such as ‘foreman’ does not transmogrify a line employee into a supervisor for Title VII purposes,” Selya wrote. Selya went on to state that Wilson did not identify evidence that Polley had supervisory authority: “[S]tanding alone, an employee’s subjective belief is insufficient to create a triable issue of material fact about a coworker’s status.” Selya wrote that Wilson’s second theory, that Moulison designated Polley as the reporting person in this situation, “is not borne out by the record….To impute Polley’s knowledge to the company on a delegation theory, the plaintiff would have to show, through competent evidence, that Moulison designated Polley to receive harassment complaints on the company’s behalf.” Selya concluded by noting that “racial taunts and slurs have no proper niche in the workplace, and no employee should have to endure a racially hostile work environment comparable to that described by the plaintiff.” “On the facts of this case, however, the blame lies squarely with the offending coworkers; the employer, when notified of what was happening, took prompt and appropriate corrective action,” Selya wrote. “The record reflects no principled basis for imposing employer liability.” Wilson’s lawyer, Guy Loranger of Saco, Maine-based Nichols Webb & Loranger, said that, in summary judgment cases, judges sometime substitute their own positions or opinions instead of a jury’s opinion. “I don’t think a judge can say, ‘No reasonable person could find that the defendant’s response was not reasonable,’ ” Loranger said. “ To me it’s overstepping their bounds as judges.” The company’s lawyer, Tim O’Brien, a partner at Kennebunk, Maine-based Libby, O’Brien Kingsley & Champion, said that Ken Moulison “is very pleased that the court agrees that he did the right thing and that he acted as a responsible employer.” “The case and the result are great examples of an employer doing the right things even when the alleged harassment is severe,” O’Brien said. O’Brien also said the case is helpful in how it outlines the 1st Circuit’s standards on who is a supervisor as opposed to a mere co-worker. “That’s helpful for all employers to understand,” O’Brien said. “They can carve out their [anti-harassment] policies and delegations of authority accordingly based on that.” Sheri Qualters can be contacted at [email protected].

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