When you're litigation counsel for a major employer, it is recommended that you do not email the following: "the 11th floor . . . staff in the area of conference room 11E [are advised] to use caution about what they say in halls or open offices," for "[c]ertain people who will be in 11E have a way of twisting and publicizing their litigation induced hallucinations." The D.C. Circuit holds in a pro se appeal that a complaint describing this and other hostile behavior stated a claim for retaliatory harassment under Title VII, reversing a district court order dismissing the complaint.
Baird v. Gotbaum, No. 10-5421 (D.C. Cir. Dec. 13, 2011): The core of the employee's claims against her employer (Pension Benefit Guaranty Corp., or PBGC), for sex/race discrimination and for retaliation, was what the opinion describes as four "discrete episodes" -
"(1) In a dispute within the PBGC over the agency's scan of its email system, some fellow workers circulated emails calling Baird 'psychotic.' (2) The Human Resources Department singled out Baird in securing her signature acknowledging receipt of an email-related office memorandum. (3) PBGC litigation counsel Raymond Forster sent an email to several employees advising 'the 11th floor OGC [Office of General Counsel] staff in the area of conference room 11E to use caution about what they say in halls or open offices,' for '[c]ertain people who will be in 11E have a way of twisting and publicizing their litigation induced hallucinations.' (4) One Ruben Moreno had shouted and pounded the table at Baird while she deposed him during a proceeding involving Equal Employment Opportunity complaints."
The district court held - and D.C. Circuit affirms - that these remarks failed to add up to an "adverse employment action" for purposes of a Title VII discrimination claim, even if they were motivated by sex or race. Holds the panel, "each of the four discrete episodes seems (at worst) akin to the sort of 'public humiliation or loss of reputation' that we have consistently classified as falling below the requirements for an adverse employment action." The panel also rejects the suggestion that the PBGC's "Workplace Rules," which (plaintiff claimed) prohibited such behavior, constitutes a "term or condition" of employment that is safeguarded by Title VII.
On the other hand, reconceived as a hostile-work-environment retaliation claim, the panel finds that such events - combined with evidence that the employer failed to take remedial steps after the plaintiff's complaints - may constitute actionable harassment. The panel finds that the district court erred by categorically excluding related incidents that occurred prior to the limitations period (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)). The district court also erred in focusing on the allegations that the employer failed to investigate or correct the behavior, instead of considering "the underlying, uninvestigated conduct itself."
The panel observes that the core events expose a retaliatory intent: "For example, the complaint very plainly attributes the emails suggesting psychosis to an intent to retaliate. First Amended Complaint ¶ 26."
Finally, the panel notes that the district court got off-track by dividing the alleged events into isolated categories of discrimination, retaliation and harassment: " . . . we find no authority for the idea that particular acts cannot as a matter of law simultaneously support different types of Title VII claims, and of course, plaintiffs are free to plead alternative theories of harm that might stem from the same allegedly harmful conduct. Thus, although a plaintiff may not combine discrete acts to form a hostile work environment claim without meeting the required hostile work environment standard, neither can a court dismiss a hostile work environment claim merely because it contains discrete acts that the plaintiff claims (correctly or incorrectly) are actionable on their own."