2d Circuit Vacates Summary Judgment for Defendant on Hostile Work Environment Claim; Warns Lower Courts That All Circumstances Must Be Considered

In McLeod v. The Jewish Guild for the Blind, No. 15-2898-CV, 2017 WL 3049541 (2d Cir. July 19, 2017) (Summary Order), the Second Circuit vacated a lower court’s award of summary judgment to defendant employer on plaintiff’s sexual harassment hostile work environment claim.

Among other things, the court reiterated that it is improper for a court to evaluate hostile work environment claims in a “piecemeal fashion”, and must instead consider all relevant circumstances.

From the Order:

On appeal, the Plaintiff points to evidence in the record tending to show that Donald Dettmer repeatedly entered the men’s bathroom while he knew that she was in the room assisting a client, and urinated in her presence while she was unable to leave. The Plaintiff also points to evidence in the record tending to show that Dettmer repeatedly made comments about her attire suggesting that she was a sex worker. It appears the district court only considered two of these instances in granting summary judgment in favor of the Defendant. The district court characterized the Plaintiff’s case as “premised entirely on … five comments made by Dettmer over a period of approximately six years [.]” Memorandum Opinion and Order at 10. While understandable in light of the inartful presentation of the pro se Plaintiff’s summary judgment case below, in so doing, the district court, in our view, did not view the record in the light most favorable to the Plaintiff. For that reason, we vacate the grant of summary judgment.

Because evidence in the record was overlooked, we find it appropriate to remand the matter for further consideration by the district court in the first instance rather that determining ourselves whether the facts in the record support a Title VII claim that is not barred by the statute of limitations that raises a genuine issue of material fact as to whether the Plaintiff was subjected to a hostile work environment. Likewise, though the parties have briefed the issue of the Faragher/Ellerth defense and invite us to rule in the first instance on its availability and applicability, we decline to do so. “It is our settled practice to allow the district court to address arguments in the first instance.” Fulton v. Goord, 591 F.3d 37, 45 (2d Cir. 2009) (quoting Farricielli v. Holbrook, 215 F.3d 241, 246 (2d Cir. 2000) (per curiam)). Accordingly, we remand the matter to the district court to determine whether, considering the totality of the record, including and illuminated by the evidence that was previously overlooked, there is sufficient evidence to preclude entry of summary judgment in favor of the Defendant-Appellee. *2

We are confident that on remand the district court will be mindful of our frequent admonition that evidence of a hostile work environment should not be evaluated “in piecemeal fashion,” Redd v. N.Y. Div. of Parole, 678 F.3d 166, 176 (2d Cir. 2012), but rather should be viewed from “the perspective of a reasonable person in the plaintiff’s position, considering all the circumstances including the social context in which particular behavior occurs and is experienced by its target.”

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