Second Circuit sustains Title VII sexual harassment verdict involving pornography at the County jail

The Court of Appeals has sustained a sexual harassment verdict under Title VII where a female correction officer was exposed to sexist comments and banter, and she observed fellow male officers reading and carrying around pornographic magazines in the County jail. The Court of Appeals also reinstates the plaintiff's Section 1983 equal protection claim against the County; the district court had vacated that verdict post trial.

The case is Legg v. County of Ulster, issued on October 29. I argued the appeal for plaintiff. Joe Ranni, Esq., and Brendan Klaproth, Esq., tried the case . . . in 2014. This case first reached the Court of Appeals in 2016, which remanded the case to the district court for procedural reasons that I will cover in another blog post. This case returned to the Second Circuit in September 2018, which means the appeal was pending for more than two years. All I remember about this argument was that it happened on the day that the Brett Kavanaugh rape-allegation hearing took place on national TV.

The sexual harassment plaintiff is Watson (Legg had an unrelated pregnancy discrimination claim). Watson and other female plaintiffs testified about the pornography at the jail, including magazines, sexist screensavers, and sexually-explicit music being played on iPods. What made Watson's case different from the other female plaintiffs (who did not prevail on their sexual harassment cases at trial) was that she had to work with a creepy male co-worker, Divorl, who breathed down her neck continuously and made lurid comments about a massage chair in the workplace. Since Watson was the sole winner at trial on the sexual harassment claim, the County argued on appeal that any harassment that Watson and the losing plaintiffs had endured together cannot count toward Watson's verdict because the jury presumably rejected that evidence, primarily relating to the pornographic magazines. The district court rejected that argument on the post-trial motion, and the Court of Appeals (Carney, Hall and Lynch) rejects it, as well, noting that "a court's task on a Rule 50 motion 'is not to examine different aspects of a jury's verdict to determine whether they can be logically reconciled with one another.'" And, apart from the shared testimony about the pornography, Watson's testimony was different from the other co-plaintiffs because only she had the creepy coworker. In all, the Court of Appeals holds, the evidence was enough to show the sexual harassment was severe or pervasive to create a hostile work environment.

Under Title VII, the plaintiff must impute the harassment to management. Watson did that in this case, the Court of Appeals holds, because the harassment was pervasive "over a prolonged period of time" and supervisors were openly reading pornographic magazines and using the offensive screensavers. And, the Court holds, the jury was able to find that the County had mishandled the creepy coworker episode by ignoring Watson's complaint about it in 2005 and then, in 2007, when Watson complained again, supervisors called Watson and Divorl into an intimidating meeting and put her on the spot in his presence, "giving her a stark choice between having Divorl fired or waiving her right to proceed on a formal complaint" against him. The jury could find the County failed to respond adequately to this complaint.  

Watson also prevailed at trial on her Section 1983 claim under the Equal Protection Clause, drawing largely from the same evidence as the Title VII claim. But while the district court sustained the Title VII verdict post-trial, it vacated the Section 1983 claim, reasoning that Watson failed to show, as required, that the hostile work environment was pursuant to official County "policy" as that word is defined in Section 1983 jurisprudence. The Second Circuit reinstates the Section 1983 claim, ruling that the district court should have recognized that the harassment was sufficiently widespread that the commanding officers knew about it but did nothing to stop it. The Court reasoned,

The jury heard testimony from three plaintiffs painting a picture of a pervasively sexualized atmosphere obviously inhospitable to female employees, where pornographic magazines circulated freely and openly between male corrections officers; officers posted vulgar screensavers on their work computers; and aggressively sexual comments in the workplace were commonplace and went unconfronted by supervisors. We have repeatedly held that the presence of pornography in a workplace can constitute a hostile work environment. . . . A reasonable jury could conclude that those conditions that were undisputedly acquiesced in by the County created a workplace that was “permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”

As for damages, the jury awarded Watson $200,000 on the Title VII claim and $200,000 on the Section 1983 claim. The district court reduced the Title VII award to $75,000. Since the Section 1983 was vacated in its entirety, the $200,000 award went out the window as well. That claim is remanded to the district court to rule on the propriety of the $200,000 verdict under Section 1983.