Judge rules behavior not sufficiently pervasive, severe

• DOI: http://doi.org/10.1002/nba.30883
• Published date: 01 November 2020
• Date: 01 November 2020

NONPROFIT BUSINESS ADVISOR NOVEMBER 2020

10 © 2020 Wiley Periodicals LLC • All rights reserved

DOI: 10.1002/nba

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.

Hostile work environment

Judge rules behavior not sufciently

pervasive, severe

The plaintiff was the director of education at the

Huntington Museum of Art.

In July 2018, she told a subordinate during a per-

formance review that he was neither communicating

well nor being a good team player.

A few days later, the executive director gave the

plaintiff a reprimand letter containing the charge that

she had “inappropriate contact” with that subordinate.

After signing the letter, the plaintiff asked the

director if the subordinate would become more com-

municative. He responded that the subordinate had

said the reason for the lack of communication was

that she had touched him inappropriately on the arm.

The plaintiff resigned in August and led a suit

that made several claims.

One was a hostile work environment in violation

of Title VII.

The defendant led a motion to dismiss.

The district court judge said a plaintiff claiming a

hostile work environment must allege facts plausibly

showing: (1)unwelcome misconduct, (2) based on

a protected characteristic, (3)that was sufciently

severe or pervasive to alter the conditions of em-

ployment and (4)there was some basis for imposing

liability on the employer.

He explained that courts were required to look at

all of the circumstances involved with the alleged mis-

conduct, including: (1) its frequency; (2)its severity;

(3)whether it was physically threatening or humili-

ating, or a mere offensive utterance; and (4)whether

it unreasonably interfered with the employee’s work

performance. He also explained that a plaintiff mak-

ing such a claim was required to show not only that

she found the conduct to be offensive, but also that

a reasonable person would have the same reaction.

The judge first ruled that none of the com-

plained-of actions had any factual link to her sex

because the plaintiff had simply claimed: (1) the

director and the subordinate were men, (2)she was

a woman and (2)she was “repeatedly subjected to

hostile behavior … based on her … sex.” But the

judge explained there weren’t any factual allegations

suggesting the difference in sex motivated either

man’s actions.

Assuming for purpose of argument that a link ex-

isted, the judge ruled that the alleged conduct couldn’t

plausibly meet the “severe or pervasive” standard.

He explained that the subordinate’s alleged refusal

to communicate—and the director’s failure to stop

it—didn’t amount to the requisite “intimidation,

ridicule, and insult” because it wasn’t anything more

than rude treatment, and even boorish behavior that

would objectively give rise to bruised feelings weren’t

sufciently offensive.

EMPLOYER WINS ➔ The plaintiff also argued

that other components of her hostile work environ-

ment were (1)the executive director’s blind acceptance

of the “inappropriate touching” charge and (2)his

decision to issue a reprimand letter to her. However,

the judge said neither a supervisor’s: (1)callous be-

havior, (2)difference of opinion nor (3)personality

conict were actionable.

The judge dismissed the suit.

[Cox v. Huntington Museum of Art Inc., U.S. Dis-

trict Court for the Southern District of West Virginia,

No. 3:20-0142, 04/23/20].

Title VII

Judge rules in favor of city

in employee’s discharge

The plaintiff began working at the City of Florence

water and sewer department in 2013.

In March 2016, he reported to management that

one of the supervisors had: (1)made sexually explicit

and obscene comments to him, (2)made sexual ad-

vances towards him at work and (3)once said he was

going to make the plaintiff his “little bitch,” among

other things.

In a meeting with the city’s human resources

manager the following day, the plaintiff provided the

names of possible witnesses.

He also submitted a written complaint a few days

later.

The accused supervisor was suspended without

pay pending an investigation.

The city interviewed ve workers that were iden-

tified by the plaintiff and four other employees.