Monday, July 31, 2017

Sexual harassment case returns to the district court

Here's a li'l sexual harassment decision that you probably missed because it's a summary order that flies under the radar. The Court of Appeals says the plaintiff may have a case and sends it back to the district court for further review.

The case is McLeod v. Jewish Guild for the Blind, a summary order issued on July 19. A plaintiff makes out a sexual harassment case when a co-worker or supervisor creates a hostile work environment based on gender. A series of vulgar statements in a short period of time may satisfy that test. At a minimum, that evidence may entitle you to a trial, and then a jury decides if the work environment was offensive enough to violate Title VII.

The Court of Appeals (Hall, Lynch and Droney) says the district court did not view the summary judgment evidence in the light most favorable to the pro se plaintiff. The Court writes:

On appeal, the Plaintiff points to evidence in the record tending to show that Donald Dettmer repeatedly entered the men’s bathroom while he knew that she was in the room assisting a client, and urinated in her presence while she was unable to leave. The Plaintiff also points to evidence in the record tending to show that Dettmer repeatedly made comments about her attire suggesting that she was a sex worker. It appears the district court only considered two of these instances in granting summary judgment in favor of the Defendant. The district court characterized the Plaintiff’s case as “premised entirely on . . . five comments made by Dettmer over a period of approximately six years[.]”
The Second Circuit says other evidence was overlooked. Rather than make an initial determination whether plaintiff has a Title VII harassment case, the Court sends it back to the district court to resolve the motion again, in the hopes that the trial court is a little more careful this time around.

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