Hostile Work Environment Sexual Harassment Verdict Upheld

In Legg v. Ulster County, 2020 WL 6325857 (2d Cir. Oct. 29, 2020), the court, inter alia, affirmed the lower court’s denial of defendant’s post-verdict motion for judgment as a matter of law (per Federal Rule of Civil Procedure 50(b)) on a female plaintiff officer’s hostile work environment/sexual harassment claim under Title VII of the Civil Rights Act of 1964.

The court summarized the applicable black-letter law:

To prove a hostile work environment claim under Title VII, a plaintiff must establish that “the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 20 (2d Cir. 2014). This showing has both objective and subjective elements: the misconduct shown must be “severe or pervasive enough to create an objectively hostile or abusive work environment,” and the victim must also “subjectively perceive that environment to be abusive.” Feingold v. New York, 366 F.3d 138, 150 (2d Cir. 2004). In our analysis, we consider “the totality of the circumstances, including: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with the victim’s job performance.

Applying the law to the facts, the court explained:

The district court carefully considered the evidence in the trial record and found that the testimony given by the three plaintiffs concerning the pervasive presence and use of pornographic magazines and screensavers (including by supervisory officers), sexual comments made by various officers about Watson’s body, and the several specific incidents with Officer Divorl and his ongoing behavior were sufficient for a reasonable jury to conclude that Watson was subjected to a hostile work environment when employed at the Jail. Although these incidents occurred over a prolonged period of time, the Divorl incidents were of particular significance.

The “specific incidents with Officer Divorl” referenced above included (among other things) Divorl coming up behind plaintiff and breathing down her neck; and, after bringing a massage chair into the office ostensibly to help plaintiff with her back pain, sitting in the chair, “moaning and making vulgar remarks to her about his nether regions.”

The court distinguished this case from its decision in Alfano v. Costello, 294 F.3d 365 (2d Cir. 2002) (on which defendant relied), where the court upheld a ruling against the plaintiff who “complained of minor pranks involving sexual innuendo that took place over a number of years, as well as an isolated comment that the plaintiff ate food in a ‘seductive manner.'” That conduct, while inappropriate, “was far less severe than that evidenced in this case.”

The court also rejected defendant’s alternative argument that there was insufficient evidence to allow the jury to impute the objectionable conduct to the defendant as plaintiff’s employer.

The court summarized the law:

Under Title VII, an employer is liable for the harassing conduct of a non-supervisory employee only if it either failed to provide a reasonable avenue for complaint or if it knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action.

Applying the law, the court explained:

Interpreting the evidence in the light most favorable to Watson, required on review of this jury verdict favorable to her, the district court found that in 2005 the County took no action at all with regard to Divorl’s actions, which Watson had reported to Corporal Ferro. It found further that Lieutenant Becker mishandled her 2007 complaint by inviting Divorl to a meeting in circumstances that both were, and that Watson experienced as, highly intimidating, and then giving her the stark choice between having Divorl fired or waiving her right to proceed on a formal complaint. [SA 39–40] Crediting Watson’s testimony, and disregarding the contrary narratives provided by Becker and Polacco—the jury was not required to believe their conflicting testimony—the district court correctly found that the jury had a sufficient basis to determine that the County failed to respond adequately to Watson’s complaint and was therefore liable for Divorl’s actions as his employer.

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