Wednesday, December 28, 2016

A slew of sexist comments not enough for discrimination lawsuit

This female New York City police officer sued over gender discrimination. The issue is whether she presented evidence of intentional gender discrimination. The Court of Appeals says No.

The case is Camarda v. City of New York, a summary order decided on December 14. It looks like plaintiff was treated unfairly. Her evidence that this happened because of her gender is that (1) Sgt. Festa said that Sgt. Milone "was looking to hurt plaintiff and would give her assignments that would making the necessary arrests required by her job" and (2) Sgt. Festa was transferred for refusing to "participate in getting [plaintiff] with unnecessary discipline." You can work with evidence like this in building a case of gender discrimination, but the Second Circuit (Calabresi, Raggi and Lynch) says it's not enough. While this evidence suggests plaintiff was treated unfairly, we cannot assume it was motivated by gender because "defendants subjected male officers to some of the same disciplinary actions for some of the same actions for which Camarda was cited." That's a clunky way of saying plaintiff was treated no differently than then men.

We have a lot of sexist comments in this case, but none are enough to support the inference of gender discrimination. Plaintiff presents evidence that Sgt. Mai told her "you are a girl and you can't type." This can also support a claim of gender discrimination. But not in this case. Plaintiff does not dispute that her actions -- "contesting a superior's retype order after preparing a flawed summons" -- justified discipline. While this was an "insensitive" comment, it does not establish discriminatory motive.

There were other sexist comments in the record. Sgt. O'Leary "pointed at [her], said 'no low cut shirts' and ... was looking [at her]." This does not support plaintiff's case, either. The evidence shows that O'Leary's disciplinary action was based not only on plaintiff's dress but on her failure to have her memo book with her, in violation of department policy. Men were disciplined over this also.

Another gender-related comment: members of the department said they did not want plaintiff around because she is a female. The problem with this evidence is that it's hearsay and therefore inadmissible.

What do we learn from this case? A slew of stupid comments will not necessarily create a viable Title VII case. We have hearsay evidence to worry about. We also have sexist comments that refer to to the plaintiff's actual performance deficiencies, negating the import of the sexist comments. We have men who were disciplined over the same misconduct as plaintiff. This case could have been decided differently, I surmise.  

No comments: