Jenkins v. Consolidated Edison Company of New York, Inc.

Background

Sherry Grimes-Jenkins sued her former employer, Consolidated Edison Company of New York, Inc. (“ConEd”), alleging race and gender discrimination under the New York City Human Rights Law; race- and gender-based hostile work environment claims under Title VII, the New York State Human Rights Law, and the New York City Human Rights Law; and retaliation under all three statutes. ConEd moved for summary judgment under Federal Rule of Civil Procedure 56.

Grimes-Jenkins worked for ConEd from 1990 to 2017 and held various union positions. She alleged that she experienced harassment and discrimination during her employment. The opinion describes disputed evidence concerning comments about sending her or other Black employees “back into the fields,” sexual comments about her body, conduct involving a women’s restroom, comments about women’s abilities and family responsibilities, workplace complaints, investigations, discipline, and several transfer requests.

Summary-judgment standard and evidentiary issues

Summary judgment is appropriate only when there is no genuine dispute about a fact that could affect the outcome and the moving party is entitled to judgment as a matter of law. The court viewed the evidence and reasonable inferences in Grimes-Jenkins’s favor because she was the party opposing the motion.

ConEd argued that some of Grimes-Jenkins’s responses to its factual statement did not adequately cite record evidence. The court said it would review the record and rely only on statements supported by the record. ConEd also asked the court to disregard Grimes-Jenkins’s affidavit as self-serving, conclusory, and contradictory. The court declined to disregard it, while stating that it would not consider statements that were conclusory or outside her personal knowledge.

Title VII and New York State hostile-work-environment claims

The court denied summary judgment on the race-based hostile-work-environment claim. Grimes-Jenkins testified that managers and others used “into the fields” or “throw you back into the fields” differently for Black employees than for white employees, and she connected the phrase to racial history and slavery. The court held that a reasonable jury could find the phrase objectively hostile and racially motivated, that Grimes-Jenkins subjectively experienced it as abusive, and that some conduct could be attributed to ConEd because it involved her manager.

The court also denied summary judgment on the gender-based hostile-work-environment claim. It identified evidence including comments about Grimes-Jenkins’s body, conduct involving the women’s restroom, comments about her children and family responsibilities, statements that male mechanics were rated more highly than female mechanics, and a comment that she kept becoming pregnant to obtain time off. Considering the evidence together, the court found a genuine factual dispute about whether the conduct was sufficiently continuous and concerted to create a hostile work environment and whether ConEd knew or should have known about harassment by non-supervisory employees but failed to take appropriate corrective action.

ConEd also invoked the Faragher/Ellerth affirmative defense, which can protect an employer from liability for certain supervisor harassment if the employer took reasonable preventive and corrective steps and the employee unreasonably failed to use available procedures. The court found factual disputes about both elements, including whether ConEd followed its policies and whether Grimes-Jenkins reasonably used corrective opportunities. The court therefore denied summary judgment on these claims.

New York City Human Rights Law claims

The court denied summary judgment on Grimes-Jenkins’s New York City Human Rights Law claims for race and gender discrimination and hostile work environment. Under that law, an employee generally needs to show that she was treated less well, at least in part, because of a protected characteristic; the law does not require harassment to be severe or pervasive to establish underlying liability.

The court held that a reasonable jury could find that the “back into the fields” comments reflected race-based treatment. It also found triable issues concerning gender-based conduct, including comments about Grimes-Jenkins’s body, the restroom incidents, comments about her family and children, statements about women’s roles in the workplace, and the dress-code evidence described in the opinion. The court further found a factual dispute about whether ConEd took immediate and appropriate corrective action after receiving complaints.

Retaliation claims

The court denied summary judgment on the retaliation claims under Title VII, the New York State Human Rights Law, and the New York City Human Rights Law. Grimes-Jenkins engaged in protected activity by making complaints about alleged discrimination and harassment, and ConEd did not dispute that point.

The court found that a reasonable jury could view the denial of transfer requests as a materially adverse employment action because the requested positions could have been objectively better than her assignment at the Astor Place substation. The court also found sufficient evidence that the alleged retaliatory hostile work environment could qualify as a materially adverse change.

The court found a factual dispute about causation. Grimes-Jenkins’s November 2013 transfer request was denied after a September 2013 complaint, and she testified that Galloza threatened to send her “back into the fields” if she continued complaining. She also testified about threats involving a transfer to Staten Island and said she felt retaliated against and blacklisted because of her complaints.

ConEd asserted that Grimes-Jenkins failed to follow the union’s transfer procedure requiring her to identify employees willing to exchange positions. The court held that Grimes-Jenkins presented evidence from which a reasonable factfinder could view that explanation as pretextual, including testimony about potential swap candidates and inconsistent accounts of whether her transfer request had been received or denied.

Disposition

Judge Analisa Torres denied ConEd’s motion for summary judgment in full. The Clerk was directed to terminate the motion at ECF No. 105. The opinion left the identified factual disputes for further proceedings and did not enter a final determination of liability on the claims.