Employment Law

• DOI: http://doi.org/10.1002/nba.30429
• Published date: 01 March 2018
• Date: 01 March 2018

10

MARCH 2018NONPROFIT BUSINESS ADVISOR

© 2018 Wiley Periodicals, Inc., A Wiley Company • All rights reserved

DOI: 10.1002/nba

Hostile work environment

Isolated and innocuous incidents don’t

justify suit

In August 2014, New York State Department

of Financial Services Insurance Examiner Tiffany

Hsueh met with Afrmative Action Ofcer Allison

Clavery to make a sexual harassment complaint

against Supervising Insurance Examiner Abraham

Guevara. During the meeting, Hsueh described her

interactions with him over the previous two years.

A few days later, Hsueh submitted a completed

internal complaint form to Clavery that included a

list of some of her interactions with Guevara. Hsueh

stated on the form that Guevara had been drop-

ping by her cubicle—and giving her candy, pastries,

drinks, fruit and popcorn—for the two years she’d

known him. Hsueh also reported: (1) they started

going out to lunch around the time she got married

in January 2014, (2) he then started escalating the

compliments and staring, (3) it got really uncomfort-

able in May and June and (4) she knew he wanted a

physical relationship. Hsueh also listed some specic

examples of those interactions, such as Guevara

calling her “Miss Beautiful” and asking her to send

him a picture of her.

Guevara was placed on administrative leave pend-

ing Clavery’s investigation, and he retired a few days

later.

Dissatised with the results of that investigation,

Hsueh led a suit claiming she had suffered from a

hostile work environment.

In her suit, Hsueh alleged the matters that she

had included in her DFS complaint, but added

other purported incidents, which were that he had:

(1) stared at her chest and legs multiple times, (2)

once grabbed her arm, (3) left voice messages for her

about personal matters, (4) followed her closely on

a walk to lunch, (5) grabbed her arm multiple times,

(6) once stood close to her on an escalator, (7) once

breathed into her ear, (8) kissed her between her ear

and cheek, (9) called her several times in July and (10)

followed her around and sat two seats away from her

at a company picnic.

The department led a motion for summary judg-

ment.

EMPLOYER WINS ➔ District Judge Paul Crotty

acknowledged that Guevara’s attempts to talk to

Hsueh may have been irritating and unwelcome, but

ruled that they were hardly offensive, threatening,

humiliating or abusive. He also noted that Hsueh had

not claimed that Guevara made any derogatory or

overtly sexual comments during his purported verbal

interactions with her.

In addition, the judge ruled that Guevara’s alleged

physical contact was not severe enough to establish

a hostile work environment. Finally, he said the

alleged encounters Hsueh complained about were

isolated episodes that took place over about seven

months.

The judge granted summary judgment in favor

of the department. He explained that the purported

incidents were episodic and not abusive in degree, and

were neither pervasive nor severe enough to alter the

terms and conditions of her employment.

[Hsueh v. The New York State Department of

Financial Services, et al., U.S. District Court for the

Southern District of New York, No. 15 Civ. 3401,

08/24/2017].

Disability

Applicant’s failure to engage in interactive

process dooms her suit

Even though she was almost blind, Chressa Mc-

Farland applied for a job with the city of Denver as

a customer service agent. After she passed the initial

requirements, the city invited her to participate in

computer testing related to her ability to use Inter-

net Explorer. However, the invitation letter did not

specify which edition of that software would be used

in the test.

McFarland, who was very familiar with Internet

Explorer 8, did not ask what version of Internet Ex-

plorer she would be tested on. However, she did ask

the city to provide “Job Access With Speech,” which

was a type of speaking software used by visually

impaired individuals.

JAWS was not available when she arrived for the

test. Instead, a person read the questions to her. She

was also provided extra time to complete the exami-

nation. However, no one told her that the test used

Employment Law

Here’s a look at several recent notable lawsuits involving nonprots. Nonprots should regularly review

employment laws and their compliance efforts to avert similar issues.