Thursday, November 20, 2014

Multi-faceted sexual harassment claim loses

Employers are supposed to take sexual harassment complaints seriously. In this case, the plaintiff claimed she was sexually assaulted at work. Management brought charges against the alleged harasser. The arbitrator sided with the alleged harasser. So what happens to plaintiff's case?

The case is Burns v. City of Utica, a summary order decided on November 7. Not all sexual harassment in the workplace is actionable. Not against the employer, anyway. The employer is only liable under Title VII if it ignores or mishandles the complaint. This means that even the most disgusting harassment imaginable will not give rise to a lawsuit if the employer has a good HR department or stops everything and deals with the problem right away.

This case does not get out of the starting gate. The district court dismissed the case under Rule 12, and the Court of Appeals (Winter, Walker and Cabranes) affirms. Plaintiff worked for the fire department. The employer suspended the harasser with pay, but he was reinstated after the arbitrator said the City had failed to prove its case against him. (The City also challenged her work-related disability claim and it prevailed against her at a separate administrative hearing).

Plaintiff tries to get around the arbitrator's ruling by alleging that the disciplinary hearing was irreparably flawed by various conflicts of interest, i.e., the City's representative at the disciplinary hearing had it in for her and had an incentive to lose that proceeding. This kind of conspiracy-theory will not usually work in federal court, and it does not work here. As the Court of Appeals says, ultimately, "both the disability and disciplinary proceedings were ultimately decided by neutral arbitrators." While "Burns alleges at length that the arbitrators disregarded the evidence in both cases, ... this action is not the forum in which to challenge arbitration decisions."

Burns also sues for retaliation under Title VII. That claim fails also, because plaintiff cannot show an adverse employment action. While she claims she was directed to return to work under unsuitable conditions, resulting in her taking unpaid leave from the Fire Department, she "was required to return to work at her previous position only after an independent arbitrator determined that she was not disabled. That decision was not an adverse employment action under Title VII."

Finally, plaintiff sues the harasser, Knapp, under Section 1983, which prohibits sexual harassment by government employees acting under color of state law. The problem here is that, while Knapp was a government employee, he did not abuse his government employment in harassing plaintiff. Rather, the "alleged sexual assault ... was palpably a personal pursuit entirely unrelated to his duties as a firefighter."

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