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

Background

Welby Accely, who the opinion identifies as a Black man, had worked for Consolidated Edison Company of New York, Inc. since 1999 and was a Construction Representative assigned to the Bronx Public Improvement Department. He sued ConEd and supervisors Andy Feehan, Darren Brindisi, and Theresa Kong, alleging race discrimination, a hostile work environment, and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, the New York State Human Rights Law, and the New York City Human Rights Law. The complaint caption identified Kong as “Kohn,” but the opinion states that this was an incorrect identification.

Accely alleged, among other things, that the workplace seating arrangement divided white male employees from women and Black employees; that Feehan and Brindisi interfered with his overtime; that he received marginal ratings on portions of performance evaluations; that he was verbally warned after a February 2018 workplace incident; that he was barred from the department office and had to use a field office with a faulty printer; that his wage increase was delayed; and that Brindisi made a statement about him to a new supervisor. ConEd’s internal Office of Diversity and Inclusion found that Feehan violated the company’s equal employment opportunity policy and that Black employees were disciplined more harshly and subjected to more scrutiny than white employees.

Summary-judgment standard

The court applied the summary-judgment standard under Federal Rule of Civil Procedure 56. It viewed the evidence in the light most favorable to the party opposing each motion and considered whether a reasonable jury could find for that party. Because the parties disputed important facts concerning the alleged racial treatment and retaliation, the court evaluated each claim separately.

Hostile work environment

For the Title VII, § 1981, and New York State claims, the court held that the evidence, considered as a whole, created factual disputes about whether the workplace was sufficiently hostile because of race and whether the conduct could be attributed to ConEd. The court found that the seating arrangement, questions about whether it amounted to de facto segregation, the actions taken to address it, and the internal investigation could support a jury finding of a hostile work environment. Neither party was entitled to summary judgment on those claims against ConEd and under § 1981 and the New York State law.

The court granted Defendants’ motion for summary judgment for the Individual Defendants on the Title VII hostile-work-environment claim because individuals cannot be held liable under Title VII. It otherwise denied Defendants’ motion on the hostile-work-environment claims and denied Accely’s motion.

Under the New York City Human Rights Law, the court applied the broader standard requiring proof that Accely was treated less well because of race, rather than requiring conduct that was severe or pervasive. The court found factual disputes about whether he was treated less well and denied both parties’ motions on the New York City hostile-work-environment claim.

Race discrimination

For the Title VII, § 1981, and New York State discrimination claims, the court considered whether each alleged action was a legally recognized adverse employment action and whether the evidence supported an inference of racial discrimination. The court found factual disputes about whether Brindisi and Feehan interfered with Accely’s overtime and whether that interference caused lost income. It denied summary judgment on the § 1981 and New York State overtime claims against Brindisi, Feehan, and ConEd, and on the Title VII overtime claim against ConEd. Kong was granted summary judgment on the overtime allegation because Accely had not alleged that she was involved in it.

The court ruled that Accely had not established a discrimination claim based on his medical leave, alleged denial of medical treatment, access to the former office and faulty equipment, verbal warning, performance evaluations, yelling and scrutiny, or allegedly stifled advancement. It therefore granted Defendants’ motion on those discrimination claims. The court also granted the Individual Defendants summary judgment on the Title VII discrimination claims because individuals cannot be held liable under Title VII.

For the New York City Human Rights Law discrimination claim, the court found that a jury could decide whether Accely was treated less well because of race. It denied both parties’ motions on that claim.

Retaliation

The court treated Accely’s initial complaint to ConEd’s Office of Diversity and Inclusion and his second complaint as protected activity. It ruled that his earlier safety-meeting complaint was not protected activity and that the 2017 and March 2018 grievances did not adequately notify ConEd that he was complaining about race-based treatment.

The court found factual disputes about the April 28, 2018 overtime incident, the alleged ban from the department office, the delayed wage increase, and Brindisi’s statement to the new supervisor. It held that these disputes prevented summary judgment for both parties when the alleged retaliatory actions were considered together. It granted summary judgment to Brindisi and Kong on the April 28 overtime allegation; to Brindisi and Feehan on the delayed-raise allegation; and to Feehan and Kong on the statement to the new supervisor, when that allegation was considered by itself. It also granted the Individual Defendants summary judgment on the Title VII retaliation claim because individuals cannot be held liable under Title VII. It otherwise denied Defendants’ motion on the retaliation claims and denied Accely’s motion.

For the New York City Human Rights Law retaliation claim, the court denied both parties’ motions because factual disputes remained about whether the alleged actions were connected to Accely’s protected activity.

Disposition

The court denied Accely’s motion for summary judgment. It granted in part and denied in part Defendants’ motion for summary judgment, using the claim-specific rulings described above. The opinion does not state that the surviving claims were finally resolved; its rulings left specified issues for further proceedings, including trial-level resolution by a jury.