No continuing violation claim in two-phase sexual harassment case

The hostile work environment inquiry under Title VII asks if the sexual harassment was severe or pervasive. The harassment can also extend over a period of time such that the normal 300 day statute of limitations for a Title VII claim is modified if the plaintiff can prove a continuing violation that lasted more than 300 days. This case asks whether the prior harassment may be joined with more recent harassment to invoke the continuing violations rule.

The case is Kimball v. Village of Painted Post, a summary order issued on June 11. There were two phases of harassment for plaintiff, who worked as a police officer out in western New York. In 2005-06, the Police Chief engaged in a variety of harassing and abusive behaviors by calling her offensive names, pushing her into filing cabinets and choking her at the police station. But the Chief eventually left his position and the Village changed the locks on its doors to prevent him from returning to the station. That phase of the harassment, by itself, was untimely under the 300 day statute of limitations. But Plaintiff claims she suffered more recent and therefore timely harassment from other co-workers after the Chief left the department. The problem for plaintiff is that the second phase of harassment was "qualitatively different" from phase one such that phase two cannot allow plaintiff to claim that both phases of the harassment were sufficiently continuous to invoke the continuing violations rule. This is mainly because the harassment was different in that no one was screaming at her or subjecting her to slurs.

Still, plaintiff may have a claim if phase two involved actionable harassment on its own, separate and apart from the Chief's harassment. She does not, the Court of Appeals (Lynch, Carney and Hellerstein [D.J.]) rules. Plaintiff says her coworkers were watching pornography on work computers. But that does not give her a sexual harassment claim because she did not actually see the pornography, only "the URLs of pornographic websites on occasion autopopulated when she used the work computers." In other words, she "saw pornographic windows minimized on the toolbar of the computers at the police station." And, she only claimed to see this on two separate occasions, not enough for a hostile work environment under Title VII.

There is another twist here. After the Chief retired, he appeared to stalk plaintiff, driving slowly past her house "while staring at her and making faces during [plaintiff's] middle of the night patrol shift, and sitting outside [plaintiff's] house in his car with his camera aimed at the house." This is all pretty sick, but there is no evidence that the Village had anything to do with this, or that "his actions were undertaken in his capacity as a consultant to the Department." Instead, the department never consulted with the ex-Chief during the three-year period it paid him as a consultant." My question is, why was the Village even paying this guy as a consultant? I have no answer for this. Since the Village had no control over the ex-Chief, plaintiff cannot hold the Village liable for this harassment.