Lawyers who represent employees in the state and local public sector know that, for sex discrimination and harassment claims, they can bring suit under both Title VII of the Civil Rights Act of 1964 and Section 1983 of the Civil Rights Act of 1871. The former law was passed specifically to combat sex discrimination, while the latter attacks discriminatory practices by way of the Fourteenth Amendment Equal Protection Clause. Yet while section 1983 has some specific advantages to employees – there is no administrative prerequisite to file a charge with the EEOC, the limitations period is longer, there is individual liability, and legal relief is uncapped – there are also some distinct disadvantages, such as overcoming qualified immunity. So, in this case, the Second Circuit holds that in contrast to Title VII, a plaintiff must show that each individual defendant was personally motivated by gender in order to establish liability. On this basis, the panel mostly reverses denial of qualified immunity for several individual police officers charged with sex harassment and discrimination.
Raspardo v. Carlone, No. 12-1686 (2d Cir. Oct. 6, 2014): There women police officers – named Raspardo, Russell and Spring – brought suit against five male officers for hostile work environment and discrimination. The principal instigator allegedly was a sergeant named Carlone, though There other officers (Steck, Panetta and Paventi) allegedly engaged in harassing and discriminatory behavior as well – for instance, dogging the plaintiffs about minor infractions. Finally, defendant Gagliardi was Chief of Police for the City of New Britain, Connecticut, and had final supervisory authority over the other defendants. (Defendants City of New Britain and the New Britain Police Department were denied summary judgment on claims under Title VII, and did not participate in this interlocutory appeal.)
While this short blog entry cannot summarize the entirety of the nearly 100-page opinion, for purposes of discussion the plaintiffs’ allegations fell into There general categories.
First, each of the plaintiffs were allegedly exposed to a hostile work environment by one of more defendants. The most serious charges were filed against Carlone, their direct supervisor, who allegedly made inappropriate jokes, comments and (in the case of plaintiffs Russell and Raspardo) physical touching. The allegations against Carlone were serious enough that, combined with a racial discrimination complaint, he was investigated by the department and district attorney, demoted and eventually retired (to avoid a recommended termination). Harassment claims against the other defendants, the superior officers, were more attenuated.
Second, Chief Gagliardi was alleged to be grossly negilgent for failing to investigate and correct the junior officers’ behavior.
Third, various defendants were charged with a panoply of discrimination (or disparate treatment) claims: unequal discipline for accidents with squad cars, unequal sick leave and roll call policies, discriminatory failure to investigate harassment, and the like.
The district court – at the summary judgment stage – denied qualified immunity across the board to the defendants, yet the Second Circuit substantially reversed.
The panel laid out some of the principles that make litigation under section 1983 distinct from Title VII:
1) Noting that it had not specifically decided the issue before in the context of sex harassment, the panel holds that “[i]f a defendant has not personally violated a plaintiff’s constitutional rights, the plaintiff cannot succeed on a § 1983 action against the defendant.” Thus, where a plaintiff “alleges that multiple individual defendants have engaged in uncoordinated and unplanned acts of harassment, each defendant is only liable under § 1983 when his own actions are independently sufficient to create a hostile work environment.”
2) One partial exception to this framework, though, is “[j]ointly planned or perpetrated acts of harassment,” which may be attributed to each of the defendants … conspiracies may exist even if their members have not expressly agreed to engage in joint behavior, and may be inferred from the actions of multiple parties who are aware of, and intentionally commit acts to further, a common project.” While no such claim was made in this case, “conspiracies may exist even if their members have not expressly agreed to engage in joint behavior, and may be inferred from the actions of multiple parties who are aware of, and intentionally commit acts to further, a common project.”
3) Supervisory liability under section 1983, because the Supreme Court eschewed vicarious liability, must be based on evidence that the supervisor “was aware of a subordinate’s prior substantial misconduct but failed to take appropriate action to prevent future similar misconduct before the plaintiff was eventually injured,” a standard referred to as gross negligence. Moreover, a “plaintiff pursuing a theory of gross negligence must prove that a supervisor’s neglect caused his subordinate to violate the plaintiff’s rights.”
In accord with these standards, the panel hacked back at plaintiffs’ individual-defendant claims. Spring’s claim against Carlone was dismissed because she suffered only episodic harassment, though the panel noted that comments that Carlone made outside of Spring’s presence – had she learned about them while she was still employed – might have bolstered her claim. Raspardo’s claim – which alleged four specific incidents of touching or sexual comments and over ten occasions where he made comments about her body – survived. (Carlone did not appeal Russell’s claim.) Regarding Steck and Panetta, the panel held they were not motivated by the plaintiffs’ sex as a matter of law, with any adverse treatment being associated with official reprimands that were not shown to be gender-targeted. And Paventi, while occasionally prone to giving the female officers offensive nicknames, was held not to have committed severe or pervasive harassment under clearly-established principles of law.
Chief Gagliardi was also cleared by the panel for supervisory liability for failure to supervise Carlone. According to the panel, because the plaintiffs did not complain specifically to Gagliardi about the harassment until Carlone was already on administrative leave, the only prior notice the chief conceivably had was his prior investigation (and punishment) of Carlone in unrelated incidents. This, as a matter of law, was insufficient (according to the panel) to make the chief grossly negligent in not disciplining Carlone or preventing him from harassing the plaintiffs.
Finally, the disparate treatment claims each failed, either because the claimed discrimination was not materially adverse (reprimands for tardiness) or because the plaintiffs were unable to establish – directly or indirectly – that it was motivated by sex, such as showing that similarly-situated men were not treated the same way.