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

Background

Welby Accely alleged that Consolidated Edison Company of New York, Inc. (Con Ed) and managers Andy Feehan, Darren Brindisi, and Theresa Kong discriminated against him under federal, state, and city law and retaliated against him for protected antidiscrimination activity. Accely alleged race-based harassment and adverse employment actions, including reduced overtime pay and changes in working conditions.

Before filing this lawsuit, Accely complained to Con Ed’s Office of Diversity and Inclusion (ODI) about alleged violations of Con Ed’s Equal Employment Opportunity Policy. ODI investigator K. Emmanuel Ohene interviewed more than twenty Con Ed employees, including Accely and the three individual defendants. Ohene prepared a twenty-page report concluding that Feehan violated the EEO Policy, while finding insufficient evidence that Brindisi violated it. Ohene later sent Accely a letter stating that the investigation found an EEO Policy violation and that corrective action would be taken. Con Ed subsequently disciplined Feehan.

Motions concerning the ODI Report

Con Ed, Brindisi, and Kong, as well as Feehan separately, moved to exclude the ODI Report, the ODI Letter, and other materials connected with the investigation. They did not dispute that Accely’s complaint and the fact that an investigation occurred could be admitted, but they challenged the report, letter, notes, correspondence, forms, emails, and preliminary drafts.

The court found the ODI Report relevant to Accely’s race-discrimination claims. It concluded that the investigation appeared reliable because Ohene conducted extensive interviews, documented the investigation, prepared drafts under ODI supervision, distinguished between the allegations and the defendants’ conduct, and reached findings adverse to Con Ed’s interests. The court also held that the report would not improperly tell the jury what result to reach because the jury would decide whether to accept the report’s findings and whether the defendants violated the law. The court planned to give limiting instructions explaining the report’s proper use.

Hearsay rulings

Hearsay is an out-of-court statement offered for its truth. The court held that the entire ODI Report was potentially admissible against Con Ed under the rule allowing statements by an opposing party’s agent or employee about matters within the scope of that relationship. Statements attributed to each individual defendant were potentially admissible against that defendant as statements of a party.

The court also held that portions of the report that did not contain hearsay within hearsay could be admitted against the individual defendants as regularly kept business records. But statements repeated within the report would require a separate basis for admissibility. To avoid confusion and cumulative evidence, the court ordered the parties to develop one version of the report with the double-hearsay statements redacted. That version could include the nature of Accely’s complaints, the steps Ohene took, the information he reviewed, and his conclusions.

The court held that the ODI Letter was admissible against Con Ed under the rule for statements by an opposing party’s agent or employee. It also held that the letter could be admitted against the individual defendants under the regularly kept business-records exception. The court stated that the defendants could cross-examine Ohene about possible errors or bias.

Other investigation materials and disposition

The court found the remaining investigation materials too numerous to analyze individually at that stage and indicated that it was inclined to exclude them as cumulative and likely to prolong the trial. It allowed Accely to offer particular documents and allowed the defendants to use documents for impeachment, with decisions on those offers reserved until trial. The court also incorporated its bench ruling granting the portion of the Con Edison defendants’ motion that sought to exclude testimony from George Nagy.

The motion by Con Ed, Brindisi, and Kong was granted in part and denied in part: the court denied it to the extent that a redacted ODI Report and the ODI Letter could be admitted against those defendants, and granted it to the extent that the report had to be redacted to remove hearsay within hearsay. Feehan’s motion was likewise granted in part and denied in part, while the court reserved judgment on the admission of the remaining underlying evidence related to the report. The parties were ordered to submit proposed redactions and a limiting instruction, or separate proposals and short letter briefs if they could not agree.