On March 21, 2011, the United States Court of Appeals for the First Circuit Court rendered a decision which emphasizes the importance of employees subjected to harassment by co-workers to report such abuses to their boss and the importance of that boss to investigate, and, when appropriate, discipline the harassers. This Court hears appeals from the federal courts within the New England states and therefore this decision is an important one for both New Hampshire and Massachusetts employers and employees.
In the case of Arthur Ray Wilson v. Moulison North Corporation, the Court agreed with the Maine Federal District Court’s granting of summary judgment in favor of the employer finding that it could not be found liable for racial discrimination. The facts as alleged by Arthur Ray Wilson were found not to create a genuine issue of material fact upon which Wilson could receive damages from his previous employer. Moulison is a Maine based electrical utility contractor specializing in the installation and repair of large lighting systems such as for airport runway illumination. Ken Moulison is the owner and chief executive. Wilson, an African American, began working for Moulison on May 22, 2006. He was assigned to a project at the Portland Jetport where he labored alongside William Stineford, Dale Small, and Ryan Polley (all white males). Polley had the most seniority and functioned as the lead worker and allotted daily work assignments when the supervisor, Bill Rowe, was elsewhere.
Moulison had an anti-harassment policy which in part directed employees to report harassment either to a supervisor or to Ken Moulison and provided Ken Moulison’s telephone number. Wilson states that in late May Stineford referred to him as “Aunt Jemima” and when Wilson objected Stineford stated that was “how he talked to other niggers.” He also referred to their digging in hard dirt to being “nigger work.” When Polley learned of this, he asked Stineford and Small to refrain from such expressions and as a further precaution assigned Stineford and Small to work in a different area, thus temporarily separating them from Wilson. Unfortunately, Stineford continued his racial slurs of Wilson and on June 5, 2006, Wilson called Ken Moulison to complain. The next day Moulison visited the site, investigated, and found the accusations as true and thereafter became irate and berated Stineford and Small, making it clear that such misconduct was unacceptable and stated they both had “a foot out the door” and further incidents of harassment, no matter how minor, would result in their immediate termination. Before leaving the job site, Ken Moulison apologized to Wilson for the offensive behavior of his fellow co-workers and told Wilson report any further problems to him without delay. Ken Moulison also indicated to Wilson that he should talk to Polley about any further incidents, but it was quite clear Wilson understood that he was to report any further incidents to Ken Moulison. Wilson not only had Ken Moulison’s telephone number, but Ken Moulison frequently visited the job site and in August Wilson was reassigned to the airport project in Manchester, New Hampshire. While there, he had numerous opportunities to speak with Ken Moulison, however, since the June conversation, Wilson made no indications that there was any further harassment.
On September 28, 2006, Wilson injured his back while working and went out on disability and thereafter sued the company for discrimination. Wilson claimed that after his contact with Ken Moulison in June the harassment had continued which the company failed to prevent. The company replied that no complaint was made. Wilson stated that he made a complaint to Polley, but never to Ken Moulison. Wilson further stated that the initial disciplinary action Ken Moulison took against Wilson’s fellow co-workers in June was insufficient. The Court noted that firing a worker for racial slurs is not always necessary and Ken Moulison’s strong warnings to Wilson’s co-workers of what would happen with further racial slurs, including that they would be fired, was sufficient. The Court further found that Polley was not a supervisor and therefore Wilson did not comply with the company’s anti-harassment policy or with Ken Moulison’s own directions after their June conversation that Wilson should notify Ken Moulison directly of any further harassment. Therefore, the company did not have notice of any further harassment of which to take action upon. Ultimately, the Court agreed with the Maine Federal District Court that Wilson had no trial worthy claim against his former employer.
Employers cannot tolerate harassment among co-workers. Upon notice of a claim of same, the employer must perform a prompt investigation and if it finds that a co-worker has discriminated against a fellow co-worker, it must take remedial action. However, as this decision confirms, the employer need not panic and decide that all incidents of harassment by a co-worker require a firing. Other disciplinary action such as a warning is often appropriate, albeit, it is generally best for such a warning to be in writing. The company should also seek counsel from an employment lawyer to determine how best to handle the investigation and, if appropriate, discipline the offending worker.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].