Pro se title VII plaintiff wins sexual harassment appeal

This sexual harassment case has enough evidence for a trial even though the district court dismissed it on a motion for summary judgment. The issues are so clear-cut that the Court of Appeals does not issue a full opinion but instead hands down a summary reversal.

The case is Hand v. New York City Housing Preservation and Development, issued on May 26. Hand represents herself pro se on this appeal. Some of her other discrimination claims were properly dismissed on summary judgment, but not the hostile work environment claim.

Hand alleges that her "supervisor felt her breast and repeatedly invaded her personal space." That's enough to win at trial, the Court of Appeals (Lohier, Winter and Carney) says. We know that a single incident can give rise to a hostile work environment case if that incident is severe. The Second Circuit ruling tells us very little about what actually happened in the workplace. Here is how the district court summarized her claim:

Plaintiff’s hostile work environment claim is based on the allegations that (1) plaintiff was punched in the back when she fought with her coworker over an open window and subsequently suspended plaintiff without pay in 2009, (2) one of defendant’s employees felt plaintiff’s breast and often pulled up a chair directly beside plaintiff, (3) defendant transferred plaintiff to 701 Euclid Avenue in March of 2009, (4) defendant incorrectly marked plaintiff AWOL while she was on medical leave between April 16–17, 2009, and (5) defendant used plaintiff’s likeness in an “About HPD” pamphlet without her permission in November of 2009. Plaintiff’s failure to establish that these allegations occurred because of her race or sex is fatal to her hostile work environment claim.

For one reason or another, the district court said these incidents were not enough to support the claim. As for the breast-touching, the district court said,

[P]laintiff cannot establish a hostile work environment based on the lone incident where an HPD employee felt her breast because a reasonable employee would not find the alleged harassment sufficiently hostile or abusive to alter the conditions of her workplace. See Mormol v. Costco Wholesale Corp., 364 F.3d 54, 58–59 (2d Cir. 2004) (finding that although a supervisor repeatedly demanded sex from an employee, threatened to fire her, made her return early from vacation, and cut her work hours, the incidents of harassment “were few and occurred over a short span of time” and thus “not sufficiently severe to overcome its lack of pervasiveness”).

The Court of Appeals disagrees, although it notes that a co-worker had "repeatedly invaded" plaintiff's personal space. Although the district court said that "Plaintiff’s allegations consist of isolated incidents occurring in multiple HPD offices with different perpetrators," the Second Circuit appears to disagree.