Court rejects harassment claim over hazing incident
| DOI | http://doi.org/10.1002/nba.30864 |
| Published date | 01 October 2020 |
| Date | 01 October 2020 |
OCTOBER 2020 NONPROFIT BUSINESS ADVISOR
11
© 2020 Wiley Periodicals LLC • All rights reserved
DOI: 10.1002/nba
Occupational Safety and Health Program.
A couple of weeks after that, the plaintiff asked for
time off pursuant to the Family and Medical Leave
Act. She attached a medical certicate from her doc-
tor stating that she was experiencing “shortness of
breath after exposure to construction dust.”
She was granted 12-weeks leave.
The plaintiff requested indenite additional leave
in April, indicating that she needed to be away from
construction dust.
Her request was denied several days later for the
stated reasons that she had failed to provide: (1)a
complete medical certication, and (2)an end date
for the requested leave.
When she never returned to work, the plaintiff was
ultimately terminated for excessive absenteeism and
“resignation not in good standing.”
She then led a suit claiming retaliation in violation
of Title VII.
However, the trial court judge granted a summary
judgment in favor of the county.
On appeal, the plaintiff argued that her January
2013 safety complaint constituted protected activity,
and she was red in retaliation for ling it.
The appellate court said a plaintiff claiming retal-
iation in violation of Title VII was required to show:
(1) she engaged in activity protected by Title VII,
(2)the employer took an adverse employment action
against her, and (3) there was a causal connection
between her participation in the protected activity
and the adverse employment action.
The panel assumed for the purpose of argument
that the county had somehow found out about her
safety complaint, and said the plaintiff appeared to be
relying entirely on the amount of time that had passed
between the date of her complaint and her termination.
EMPLOYER WINS ➔ The appellate court af-
rmed the summary judgment, ruling that the six
months that had passed between the two events was
too much time to establish a causal link.
[Petti v. Ocean County Board of Health, et al., U.S.
Court of Appeals for the 3d Circuit, No. 19-2137,
03/31/2020].
Sexual harassment
Court rejects harassment claim over
hazing incident
The plaintiff was a Capital District Transportation
Authority mechanic who gave the required notice that
he was leaving for another job.
On the plaintiff’s last day of work at the CDTA,
another mechanic (1) wrestled him to the ground,
(2)pinned him to the oor, and (3)“dry-humped”
him while saying “Let it happen. Let it happen.”
A foreman came to the scene while the plaintiff was
still pinned to the oor. Instead of stopping the other
mechanic’s aggressive behavior, the foreman purport-
edly kneeled over the plaintiff after stripping to only
his underwear, and put his groin on the plaintiff’s head.
A different foreman recorded the hazing incident
on his phone.
When an assistant superintendent eventually
learned about the incident, the three participants were
suspended while an investigation took place.
Following the investigation, one participant was
terminated. The other two were (1)suspended for 10
days, (2)subjected to “last chance” agreements, and
(3)required to undergo harassment prevention training.
The plaintiff later led a suit claiming the CDTA
was liable for a hostile work environment because of
sexual harassment.
However, the trial court judge granted a summary
judgment in favor of the CDTA.
The plaintiff argued on appeal: (1)a sexually ex-
plicit environment had existed in the workplace for a
long time, (2)the CDTA knew or should have known
about that atmosphere, and (3)the incident directly
resulted from it.
In support of his argument, the plaintiff claimed
he had heard: (1)the foreman who recorded the inci-
dent had repeated the mechanic’s suggestive behavior
with someone else, and (2)another foreman routinely
exposed his penis on the job.
He also claimed that the mechanic who abused
him had: (1)previously done it to another employee;
and (2)was one of the most inappropriate employees
because he often smacked people on their butt, threw
people on the ground, horsed around, engaged in fake
wrestling and knocked tools on the oor.
EMPLOYER WINS ➔ Assuming for the purpose
of argument that the plaintiff had presented com-
petent evidence—instead of rumors, hearsay and
“shop talk”—the appellate court said he had failed
to make the requisite proof showing that the CDTA
had either encouraged, condoned or approved that
kind of misconduct.
The court said that the evidence showed instead
that the CDTA had appropriately handled the only
other report of similar misconduct. It explained that
the foreman who recorded the 2013 incident on his
phone was (1)accused in 2009 of showing pornog-
raphy to an employee at work, (2)counseled about
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