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Court Revives Harassment Claim Based on Saucy Comments

By Robyn Hagan Cain | Last updated on

It's inappropriate for a supervisor to tell his subordinate that her husband was "not taking care of [her] in bed." That's a one-way ticket to a sexual harassment lawsuit.

It's also inappropriate to record your boss without his knowledge or permission. That's a one-way ticket to termination.

Last week, the Second Circuit Court of Appeals reinstated a Rochester Police Department employee's hostile work environment claim, finding that the circumstances surrounding inappropriate statements that started and ended during her employment were sufficient to warrant a trial. The court, however, refused to revive the employee's retaliation claim, concluding that the Department had cause to terminate her because she admitted to recording Department employees without authorization.

Jewanta Desardouin began working for the City of Rochester as a supervisory security officer in February 1988. She reported to Vincent McIntyre. Desardouin alleged that, on a weekly basis starting in May 2007 and continuing through June or July, McIntyre made "sexual advances" toward and told that her husband was "not taking care of [her] in bed."

Desardouin complained within the Department, but was told that nothing could be done. In 2008, she filed a complaint with the New York State Division of Human Rights. In October or November of 2008, she submitted a recording of McIntyre and Eric Cotton, another Security Supervisor, allegedly discussing tampering with her computer and changing her schedule. She subsequently filed a federal claim.

After admitting that she has recorded McIntyre and Cotton without authorization, she was fired.

Was it retaliation? It doesn't matter, according to the Second Circuit.

An employer can defeat a Title VII claim that it took an adverse employment action against an employee by showing that it acted for a legitimate, non-discriminatory reason. Here, Rochester claimed that Desardouin was terminated for her secret recordings of conversations of police officials. As the district court noted, making these recordings was a felony and a violation of departmental policy. Those are pretty solid grounds for summary judgment.

Her hostile work environment claim, however, survived.

McIntyre's comments, though not presenting an obvious case of hostile work environment, were sufficiently beyond the line drawn in Harris v. Forklift Systems, Inc 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. The appellate court reasoned that McIntyre's statements could "readily be found to be a solicitation for sexual relations coupled with a claim of sexual prowess and can just as readily be found to have been perceived as such by the female employee."

Furthermore, 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.

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