According to the Court’s opinion, the plaintiff had been the
lead nurse, but requested to rescind her management responsibilities. A few weeks before one of her co-workers took
over as the lead nurse in February, she took a vacation in January and texted
that same co-worker that she loved being on vacation and had done nothing all
week. He responded that she should enjoy
herself and suggested that she have fun and wild sex. She claimed to have been offended, but said
nothing. The following week he texted
her: “You and your husband lay out a wonderful dinner an [sic] have wild sex on
the table!!!!! I do think about sex all the time. I [sic] just not getting it.”
After she complained to the CEO, he
apologized and sought to discuss it with her.
He became angry when she would not speak with him and began treating her
rudely. Over the next two months, he
refused to answer questions, denied her lunch breaks, denied her requested days
off, gave her difficult assignments, and threw a chart at her. He attributed her treatment to her complaint
about him and stated that she would be finding out what hell is like. She
submitted her two-month notice of resignation at the end of March and later
brought suit for sexual hostile work environment, but not for retaliation.
First, the Court found that the text messages were not
gender-related:
“To be actionable, the harassment must consist of more than
words that simply have sexual content or connotations.” . . . . “The critical
issue, Title VII’s text indicates, is whether members of one sex are exposed to
disadvantageous terms or conditions of employment to which members of the other
sex are not exposed.” . . . This
typically includes “explicit or implicit proposals of sexual activity,” id., as
well as “non-sexual conduct” that evinces ‘anti-female animus.’” . . . We have none of that here. There is no
suggestion in the record that [he] or any other . . . employee expressed an anti-female animus
toward [her]. There is no evidence in the record of any other sexual
statements, any physical sexual harassment, or any use of derogatory language
by [him]. [She] does not allege, for example, that [he] asked her to have sex
with him, touched her or threatened to touch her, made any comments about her
body, used language derogatory to women, or treated any of the other women in
the office inappropriately. Moreover, [she]
expressly denied that [he] “ever request[ed] any sort of sexual favor from
[her].” She even admitted that the text messages were “inappropriate and
unprofessional no matter who received [them] . . . , whether it was . . . a man
or another woman.”
In addition, she admitted that his rude conduct towards her
was not based on her gender, but was based on his anger at her reporting of the
text messages to the CEO. Accordingly,
his gender-neutral misconduct could not be attributed to her gender either.
Second, the Court found that his behavior was not severe or
pervasive enough to constitute a hostile work environment. The two text messages were isolated
events. The remaining incidents might
have supported a successful retaliation claim, but the Court refused to stretch
the law governing sexual discrimination to include gender-neutral acts that are otherwise only
actionable as a retaliation claim (which she did not bring despite the
opportunity to do so).
The dissent found that there was enough evidence presented
both as to whether the conduct was gender related and severe and pervasive.
NOTICE: This summary is designed merely to inform and
alert you of recent legal developments. It does not constitute legal advice and
does not apply to any particular situation because different facts could lead
to different results. Information here can be changed or amended without
notice. Readers should not act upon this information without legal advice. If
you have any questions about anything you have read, you should consult with or
retain an employment attorney.
