Wednesday, March 31, 2010

Hostile work environment case dismissed on appeal

Some hostile work environment cases make it to trial, and some don't. This one did not, even though the Court of Appeals finds the conduct of a male supervisor to be particularly inappropriate.

The case is Kercado-Clymer v. City of Amsterdam, a summary order decided on March 25. Kercado-Clymer sued under Section 1983, which allows the defendants to raise a qualified immunity defense, which in turn allows them to take up an immediate appeal if the district court denies their motion for summary judgment.

Here's the plaintiff's hostile work environment evidence: "Kercado-Clymer alleges that Brownell created a hostile work environment based on her gender by making several sexually and racially derogatory statements and by denying her desk duty during the week, disciplining her for driving the wrong way down a one-way street, and denying her overtime opportunities." Her claim fails. The Second Circuit (Winter, Katzmann and Rakoff, D.J.) concludes:

[W]hile Kercado-Clymer argues that she was subject to sexual harassment on a regular basis, she only points to a few incidents of facially sexual harassment over a thirteen year period—Brownell’s comment about raping his wife, his remarks about her hair and her relationship with her husband, and the inappropriate postcard he sent to the precinct. The other incidents alleged by Kercado-Clymer as contributing to the hostile work environment were not facially related to sex. Even taken together, however, while certainly highly offensive, these instances are far less severe or pervasive than those for which we have concluded that a reasonable trier of fact could find a hostile work environment.

The Court of Appeals certainly sympathizes with plaintiff, and the Court thinks that Brownell is a pig, deeming his behavior "patently inappropriate." What dooms the case for plaintiff is that not enough incidents happened over a 13-year period and not all of it was explicitly gender-related. While offensive behavior that is not explicitly sexist may support a gender-harassment case, (Raniola v. Bratton, 243 F.3d 610, 621 (2d Cir. 2001), the Court doesn't think that Kercado-Clymer has enough for trial.

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