By Mitchel Wilson
The Federal 2nd Circuit Court of Appeals, in Desarduoin v. City of Rochester, 117 FEP Cases 778 (2d Cir. 2013) reestablished a fired female police security officer’s sexual harassment/discrimination claim against the City of Rochester, New York under Title VII, while affirming the dismissal of her retaliation and state law claims. The court concluded the lower court erred in granting summary judgment on the employee’s gender discrimination claim when she alleged her supervisor made unsolicited sexual advances from May to July of 2007, but correctly dismissed her retaliation and state law claims. The employer was able to defeat her retaliation claim when it showed that it acted for a legitimate, non-discriminatory reason, when it fired her for secretly recording fellow officers, a felony and violation of department policy.
The employee was the target of the harassment on a weekly basis for two to three months and at one time, her supervisor suggested that her husband was “not taking care of (her) in bed.” The employee later complained to the department of her alleged supervisor’s conduct in January 2008, after witnessing him “routinely harass” her fellow coworkers.
The court concluded these facts were enough to go to trial on the harassment claim because:
[The supervisor’s] comments, though not presenting an obvious case of hostile work environment, are sufficiently beyond the line drawn in Harris to warrant a trial. The comments persisted on a weekly basis over an interval that lasted at least two and perhaps three months. Though not threatening, they were more than merely offensive. For a male to say to a female employee under his supervision that her husband was “not taking care of [her] in bed” is the sort of remark that can readily be found to be a solicitation for sexual relations coupled with a claim of sexual prowess can just as readily be found to have been perceived as such by the female employee. The weekly repetition of such a remark over several weeks only served to reinforce its offensive meaning and to make sexual intimidation , ridicule, and insult a pervasive part of Desardouin’s workplace, effectively changing the terms and conditions of her employment.
However, because the City had a legitimate reason to fire the officer when she secretly recorded her fellow officers in order to bolster her sexual harassment claim, and then initially lied about it, the City sufficiently proved that her firing was not for any discriminatory reason. Further, her valid claims are weakened because not only does she have fewer facts to allege at trial in proving discrimination, but she has fewer causes for damages as well.
