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Desardouin v. City of Rochester, No. 12-187 (2d Cir. Feb. 19, 2013); Summa v. Hofstra University, No. 11-1743 (2d Cir. Feb. 21, 2013)

This week, the Second Circuit issued two opinions that at least partially reversed summary judgment in Title VII harassment and retaliation cases. In the first, Desardouin, the panel returned a sex harassment claim that concerned sexual comments made to the plaintiff weekly by her supervisor over a two to three month period. In the second, Summa, the court held that under Title VII (and Title IX, governing educational institutions), it can be a protected activity under the statute's anti-retaliation provisions to complain of even a single incident of alleged harassment.

Summa v. Hofstra University, No. 11-1743 (2d Cir. Feb. 21, 2013): The employee in this case was a woman graduate who, for a $1000 stipend, served as team manager for the university's football team for the fall season. From the very first, she was subjected to comments about her boyfriend - a team member - not being "man" enough for her, and that "that women should not be managers because they don't know anything about sports ." The players created a mock Facebook page about the plaintiff, describing her as "Miss Piggie, The 'Wannabe' Big Boss Man, F.B. Manager." (The coach ordered the players to remove this when the plaintiff complained.)

The catalyzing event was when one player (named Taylor), on a bus ride home from a game - during a screening of an R-rated movie on the bus monitors - told Summa that "[t]his is what you white women want, our black dicks. That shit will make you crazy." This time, in addition to taking her complaint to the coach (who admonished the player), she escalated her opposition to the harassment by approaching the school's Equality Office. She submitted a written complaint, which referred only to the bus incident itself. Because of the complaint, the school ordered the coaches and players to receive training in sex harassment.

Summa later discovered that she had not been renewed as team manager for the spring season. She was also denied employment as a graduate assistant in the Office of University Relations, headed by the Vice President for University Relations (co-defendant Connolly), and eventually had her student working privileges revoked by the school for an alleged violation (overbilling her time) for which no other student had ever been investigated or penalized.

The plaintiff filed Title VII, Title IX and New York State Human Rights Act (NYSHRA) claims of harassment and retaliation. The district court granted summary judgment on all claims, but the Second Circuit remands the retaliation claims for trial.

For Summa's harassment claim, summary judgment was affirmed on the ground that the school met its duty of due care by investigating and correcting harassment by the players. The panel held that the same standard of liability for harassment applied to employers both for co-workers and non-employees:

"While this Circuit has not yet determined the standards for addressing harassment attributable to non-employees, we now adopt the well-reasoned rules of the Equal Employment Opportunity Commission ('EEOC') in imputing employer liability for harassment by non-employees according to the same standards for non-supervisory co-workers, with the qualification that we "will consider the extent of the employer's control and any other legal responsibility which the employer may have with respect to the conduct of such non-employees." 29 C.F.R. § 1604.11(e)."

The court holds here that each incident reported to the coach or school was immediately investigated, and effective measures were taken to correct the misbehavior.

"Because defendants took the needed remedial action in this case, the harassment carried out by some players on the football team cannot be imputed to the University and its personnel. In addition to the prompt response to the particular incidents of harassment, upon the report of the movie incident to the school's EEO officer-which took place after the offending player had already been expelled from the football team-the University had the entire Athletics staff undergo sexual harassment training before the start of the next football season. "

With the retaliation claims, though, the court finds sufficient evidence to warrant a jury trial. The panel holds that the plaintiff presented a genuine issue of material fact that she believed in good faith that her harassment complaint was related to her employment as team manager, rather than a student-on-student complaint: "It is clear from Summa's formal EEO complaint that she believed that the event was employment related. Furthermore, this was an entirely reasonable belief because Summa was not on the football team bus in her capacity as a graduate student, but rather was there solely in her capacity as an employee of the Athletics Department."

Moreover, despite that Summa's written complaint was about a single incident (on the team bus), Summa also had a good-faith basis for believing that it constituted sex harassment.

"Our case law, particularly Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir. 2000), establishes that a single incident can create a hostile environment if it is sufficiently severe. The incident on the team bus was close enough in severity to that in Howley that a reasonable person certainly could have believed that it alone was enough to satisfy the standard. Finally, as Summa correctly notes, the district court erroneously confined its consideration to her written complaints. The written notes of the University's Equality Officer evidence that Summa complained about the entire course of harassment over the semester. In determining the reasonableness of Summa's belief, the court should have considered these complaints as well because '[t]he law protects employees in the filing of formal charges of discrimination as well as in the making of informal protests of discrimination, including making complaints to management, writing critical letters to customers, protesting against discrimination by industry or society in general, and expressing support of co-workers who have filed formal charges.' Matima v. Celli, 228 F.3d 68, 78-79 (2d Cir. 2000) (internal quotation marks omitted)."

The panel also holds that a four-month gap between Summa's written complaint and denial of the team manager job the next season presented sufficient "temporal proximity" to allow a jury to infer that the written complaint caused the adverse action:

"Only four months passed between Summa's November 2006 complaints and the denial of the spring season manager position. There is strong reason to find this four-month time span sufficient in this case to establish causation because Summa's complaints were based on events that occurred on the very last day of the fall season. The start of the spring season was the first moment in time when the football coaching staff could have retaliated against Summa as she was not directly working for them over the intervening months. This Court has recently held that even gaps of four months can support a finding of causation."

Indeed, even "[t]he seven-month gap between Summa's filing of the instant lawsuit and the decision to terminate her employment privileges is not prohibitively remote."

The court holds that there was also sufficient evidence that each of the reasons that university gave for the various adverse actions was pretextual. (1) The school claimed that Summa had not expressed a desire to work as a team manager during the spring season, but this was belied by email traffic to the contrary. (2) For the rescission of the graduate assistantship position, there was evidence that a hostile administrator - aware of the harassment complaint - intervened into the process and encouraged the decisionmaker. (3) Finally, termination of Summa's student working privileges arguably resulted from a biased investigative process, where the administrator had "never even looked into the billing practices of any other student employee and had never previously terminated student employment privileges for the practice."

Desardouin v. City of Rochester, No. 12-187 (2d Cir. Feb. 19, 2013): The plaintiff, a security officer, alleged that she was subjected to a stream of sexual comments and propositioning by her supervisor (named McIntyre) between May and June or July of 2008. While the district court believed that weekly comments over such a short period was not severe or pervasive enough to submit to a jury, the Second Circuit reverses, holding the question close enough under Title VII and § 1983:

"Though not threatening, they were more than merely offensive. For a male to say to a female employee under his supervision that her husband was 'not taking care of [her] in bed' is the sort of remark that can readily be found to be a solicitation for sexual relations coupled with a claim of sexual prowess and can just as readily be found to have been perceived as such by the female employee. The weekly repetition of such a remark over several weeks only served to reenforce its offensive meaning and to make sexual intimidation, ridicule, and insult a pervasive part of Desardouin's workplace, effectively changing the terms and conditions of her employment. [Citation.] Indeed, Desardouin's affidavit stated that she found McIntyre 'threatening,' and that he made 'sexual advances' toward her and another employee. The allegations of repeated solicitation of sexual relations in a vulgar and humiliating manner suffice to warrant a trial."

The court nevertheless affirms dismissal of a parallel state law claim (under the NYSHRA, because the plaintiff already pursued that claim through the state administrative machinery) and a retaliation claim (because the employee failed to present sufficient evidence that her complaints of harassment caused her termination for unlawful recording of conversations, and reporting untruthfully about the same).

Please visit the professional bio of Paul W. Mollica at the Outten & Golden LLP website.

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