Judge rules isolated offensive comments not proof of harassment
| Published date | 01 November 2019 |
| DOI | http://doi.org/10.1002/nba.30682 |
| Date | 01 November 2019 |
NOVEMBER 2019 NONPROFIT BUSINESS ADVISOR
11
© 2019 Wiley Periodicals, Inc., A Wiley Company • All rights reserved
DOI: 10.1002/nba
responsiveness needs improvement.”
The plaintiff was demoted that same month.
His appeal of the supervisor’s May evaluation was
rejected in September.
The plaintiff resigned in December and led a suit
against the city and others that made several claims.
One was that both the supervisor’s March counsel-
ing memo and her May performance review were in
retaliation for the 2013 complaints he had made to
the commissioner. Another was that the demotion
was in retaliation for his appeal of the May perfor-
mance review.
However, the district court judge granted a sum-
mary judgment in favor of the defendants.
The plaintiff rst argued on appeal that his dis-
ability was a motivating factor for the supervisor’s
actions because they occurred after his 2013 protected
activity of complaining to the commissioner.
EMPLOYER WINS ➔ However, the appellate
court rejected that argument because the supervi-
sor’s counseling memo and performance evaluation
had occurred almost a year after the plaintiff spoke
to the commissioner. It ruled that lapse of time was
too lengthy to imply a causal connection.
The plaintiff argued that the months between those
events should be ignored because they were part of a
strategic move by his supervisor, and she had waited
before taking her revenge.
However, the panel also rejected that contention,
stating that the plaintiff hadn’t offered anything other
than speculation to support that notion.
The plaintiff next argued that his disability was a
motivating factor in his demotion because it was in
response to his protected activity in appealing the
May 2014 negative performance review.
But the appellate court said that claim failed for
two reasons.
First, it held that appealing a negative performance
review wasn’t a protected activity that could give rise
to a retaliation claim. It explained that a “protected
activity” was some action taken to oppose statutorily
prohibited discrimination, and the plaintiff’s appeal
had merely offered an explanation about why he may
have been slow in responding to emails.
Second, it said the demotion couldn’t have been
in response to the plaintiff’s appeal, because the evi-
dence showed that demotion decision had been made
before the supervisor’s negative performance review.
The appellate court afrmed the trial judge’s sum-
mary judgment.
[Natofsky v. The City of New York, et al., U.S.
Court of Appeals for the 2d Circuit, No. 17-2757,
04/18/2019].
Title VII
Judge rules isolated offensive
comments not proof of harassment
The plaintiff was a bus driver for the North Little
Rock School District.
In 2017, the plaintiff reported to the school dis-
trict’s executive director that a supervisor had made
a derogatory and obscene comment about the plain-
tiff’s sex life.
Even though the supervisor claimed he didn’t recall
making the statement, the school district conducted
an investigation. It eventually red him after conclud-
ing that the alleged remark about the plaintiff wasn’t
the supervisor’s only offense.
The plaintiff led a suit claiming: (1) sexual ha-
rassment in violation of Title VII and (2) the tort of
outrage.
The school district led a motion for summary
judgment.
The trial court judge said a plaintiff claiming sex-
ual harassment in violation of Title VII was required
to prove: (1) she was a member of a protected group,
(2) the occurrence of unwelcome harassment, (3) a
causal connection between the harassment and her
membership in the protected group, (4) the harass-
ment affected a term or condition of employment
and (5) the employer knew—or should have known—
about the harassment and failed to take prompt and
effective remedial action. He also cautioned that the
alleged conduct must be extreme instead of simply
rude or unpleasant, and explained that a few isolated
or sporadic incidents usually wouldn’t be actionable.
EMPLOYER WINS ➔ The judge rst ruled that
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