Sotomayor’s Second Circuit Decisions on Retaliation and Harassment

There are two cases from the Second Circuit in the category of retaliation and harassment which also consider allegations of unlawful discrimination. The primary holdings by Judge Sotomayor in these cases deal with retaliation and harassment and demonstrate her ability to delineate among various types of retaliation, harassment, and discrimination claims in which the lines are sometimes blurred. Her holdings also demonstrate that when she finds probable harassment or retaliation, there’s little doubt a reasonable jury could use the voluminous evidence in existence as a basis for also finding harassment or retaliation.

Cruz v. Coach Stores, Inc., 202 F.3d 560 (2d Cir. 2000)
A female Hispanic employee filed this case, alleging various acts of unlawful conduct on the part of her employer: race discrimination in connection with a promotion; race discrimination in connection with her termination; retaliation for engaging in a protected activity protected by Title VII of the Civil Rights Act of 1964; and sexual harassment and racial harassment caused by a hostile environment which her employer permitted to exist. The district court dismissed all of the employee’s claims without a trial.

On appeal, Sotomayor considered each of the employee’s claims. As to her failure to be promoted, Sotomayor ruled that it was impossible for the employee to prevail on that claim because there was no evidence that an opportunity for a promotion existed or that the employee was qualified for a promotion. A possible new job had been mentioned to the employee, but it never materialized.

As to her discriminatory termination claim, Sotomayor found that the Hispanic employee and a non-Hispanic employee had been terminated at the same time for the same offense: fighting on the job. If anything, this proof showed that employees were treated the same regardless of their race or ethnicity.

As to the employee’s claim of being retaliated against for engaging in protected activity under Title VII, Sotomayor also determined that there was no merit to the claim. During a lunch hour, the Hispanic employee and a non-Hispanic employee had an altercation. The non-Hispanic employee said to the Hispanic employee that her “nipples [were] erect.” An argument ensued, and the non-Hispanic employee stepped extremely close to the Hispanic employee and called her a “f***ing cu**.” The Hispanic employee then slapped the non-Hispanic employee, who responded by placing the Hispanic employee in a headlock. They were finally separated by a supervisor, and three days later after an investigation by human resources, both employees were fired for violating the employer’s rule against “physical or verbal assault while on company premises.”

The protected activity which the Hispanic employee claimed she was engaged in and which resulted in her retaliatory termination was slapping her coworker, whom she claimed was harassing her. Sotomayor concluded that slapping a coworker, even one accused of harassment, doesn’t constitute a protected activity under Title VII. Rather, protected activity includes making complaints orally and in writing, protesting against discrimination or harassment in a general way, and expressing support for coworkers who’ve filed complaints of discrimination or harassment. Fighting doesn’t count; rather, it’s grounds for termination.

Sotomayor then considered the Hispanic employee’s claim of sexual and racial harassment created by a hostile work environment. According to the employee (and there was witness support for this allegation), an HR supervisor routinely referred to Hispanics as ”spics,” African-Americans as “niggers,” told them they were only capable of sweeping the floor at McDonalds, and made derogatory references to “Colored People’s Time.” The supervisor also made repeated remarks to the effect that women should be barefoot and pregnant. He would also stand very close to female employees when talking to them, finally backing them up against a wall.

According to Sotomayor, in order to support a hostile work environment claim, there must be evidence that “the workplace is permeated with discriminatory intimidation, ridicule, and insult, sufficiently severe or pervasive to alter the conditions of the victim’s employment.” In light of the allegations in this case, a reasonable jury could conclude that the employer had permitted a hostile work environment to exist, resulting in both sexual and racial harassment. The significant allegations that both kinds of harassment existed simultaneously made it even more likely that a jury would find the existence of a hostile work environment.

Sotomayor agreed that the district court had properly dismissed all of the employee’s claims, except her claims of sexual and racial harassment. She ordered that the case be returned to the lower court for a trial on those issues.

Sotomayor’s consideration of each separate claim in detail is impressive. When there are multiple claims, as in this case, it’s not uncommon for all of them to be lumped together for a decision. That’s exactly what the lower court had done in deciding to dismiss them all without a trial. Sotomayor agreed with the lower court until she got to the hostile work environment claim. The allegations supporting that claim were different and deserved a full hearing at trial.

Raniola v. Bratton, 243 F.3d 610 (2d Cir. 2001)
A female police officer filed suit for a hostile work environment based on her sex and for retaliation in response to her attempts to stop the harassment. According to the New York Police Department (NYPD), though she started out her 13-year career with commendations, she ended it with various disciplinary problems that led to her eventual termination. While, according to Judge Sotomayor, the female officer told “a very different story,” the district court dismissed her case. The district court didn’t contest that the officer was the object of some difficult treatment but found that her treatment was typical of “the camaraderie of a precinct house [lacking] some of the niceties of expression that one would expect” in other workplaces; that the officer didn’t regard the use of barnyard expletives directed toward her or others to be offensive; and that the reason the officer was treated so badly wasn’t because she was a women but because she was intensely disliked.

In reversing the district court’s dismissal, Sotomayor recited voluminous evidence that could have allowed a reasonable jury to decide that the officer had been subjected to a hostile work environment based on her sex and that she’d been retaliated against for complaining about the harassment. Sotomayor sent the case back to the district court for a jury trial.

When the female officer was transferred to the 50th precinct, the precinct captain began to direct a series of comments and actions that could be construed as creating an abusive, hostile work environment based on the female officer’s sex. The officer found the word “cu**” written across her name in an official police ledger. Her female partner had something similar written across her name. When they tried to complain, the Integrity Control Officer told them that if they formally complained, the captain would make their lives more miserable than they already were.

The captain called a meeting to discuss a directive from headquarters to make more arrests for violations of domestic violence protective orders. Standing directly in front of the female officer, the captain said, “If you get to a job, meaning a family dispute, if you get to that job and the bitch has [a protective order] in her hand,” then an arrest should be made.

The officer later saw a flier posted in a precinct elevator advertising a fishing trip on which the two female officers’ names were written together with “free blow jobs” and “cu***” with an arrow to the names of the female officers.

The captain gave both female officers monthly quotas for moving and parking violations that were higher than everybody else’s in the precinct. Both officers were assigned to the sector of the precinct that was the “largest, most heavily populated with multiple dwellings, a highly undesirable assignment because an adult home located in the vicinity generated considerable time-consuming work.” The two female officers were the only officers assigned by the captain to perform safety inspections of taxi and bus drivers.

The female officers were given work normally assigned to more junior officers. They were denied by the captain a commendation for assisting two male officers in making a significant arrest, although the two male officers recommended it. On another occasion, when addressing a police roll call, the captain said of the female officer who ended up filing suit: “If [she] opens her head, opens her mouth, I am going to put one in her fu**ing head,” which the officer interpreted as meaning that the captain would shoot her.

The female officer’s work was regularly sabotaged. Her monthly police activity reports disappeared. Sometimes her police paperwork was found in the trash. She was written up for failing to sign out on a day when she didn’t work.

According to Sotomayor, viewing the evidence in its totality, a reasonable jury could have concluded that the officer’s abuse was so severe and pervasive as to constitute a hostile work environment in violation of Title VII. Sotomayor also determined that there was no basis for concluding that the officer wasn’t offended by expletives and other adverse treatment hurled her way. She regularly complained about them.

As to the retaliation claim, Sotomayor similarly found plenty of evidence that a reasonable jury could use to find that the female officer had been retaliated against. Shortly after she filed a charge with the Equal Employment Opportunity Commission (EEOC), the captain called a meeting of all officers at which he said, “Listen up everybody, we have a problem. There is an investigation going on in the precinct and there is a rat here in the precinct. Until I get rid of her, we are all in this together, so everybody watch what you are doing.” The female officer was the only female in attendance.

The captain then called the female officer into his office and told her he was changing her performance evaluation to say that her work fell below departmental standards. He justified this action by accusing the officer of faking an injury, though evidence of the injury was virtually undisputed. The captain then transferred the officer to another precinct, although he had previously denied her request for a transfer by crumpling up her transfer paperwork and saying, “I am not signing sh** for you.” The captain then had the officer disciplined for missing two traffic court appearances and not properly securing a prisoner’s camcorder. When the officer was suspended for 30 days at the hearing on these disciplinary matters, the captain said to her, “I got you now . . . you can kiss your job goodbye because you’re going down.”

Finally, the captain terminated the female officer’s employment because she allegedly swore at internal affairs officers, something that was disputed by the officer and not supported by an investigation that followed. Based on all this possible evidence, Sotomayor ruled that the district court shouldn’t have dismissed her hostile environment and retaliation claims.

Analysis of Sotomayor’s Decisions on Retaliation and Harassment
You may think I’ve unnecessarily extended the summary of this case. However, as both cases demonstrate, Sotomayor’s decisions to require jury trials in cases involving alleged harassment and retaliation aren’t based on one or two or a few alleged facts. The alleged facts are voluminous. In both of these cases, she didn’t rule that harassment and retaliation had occurred, only that there was sufficient evidence from which a reasonable jury could conclude that harassment and retaliation had occurred. After a careful review of these cases, it’s difficult to argue with her reasoning.

Next, we’ll review Sotomayor’s cases involving the Fair Labor Standards Act.