Title VII Sexual Harassment Claim Dismissed; Town Clerk’s Assistant Was Not an “Employee”

In Davis v. Town of Hempstead, 2019 WL 235644, at *5 (E.D.N.Y. Jan. 16, 2019), a sexual harassment case, the court (inter alia) concluded that the plaintiff was not an “employee” of the Town Clerk (defendant Bonilla) – whom she claimed sexually harassed her – and thus dismissed her claim under Title VII of the Civil Rights Act of 1964.

Here is an excerpt from the court’s summary of the facts:

Bonilla acted flagrantly and improperly in his dealings with the plaintiff: commenting on plaintiff’s attire and touching her inappropriately against her will, while scrupulously avoiding the presence of witnesses while doing so. … In one or more instances, plaintiff captured Bonilla’s inappropriate conduct on video using her cell phone, but neither shared these recordings with Town officials, nor reported the problems to Town officials while the situation was ongoing. … Plaintiff’s failure to complain was based in part on the fact that she believed he had the power to fire her.

As for the relevant law, Title VII provides that

Any person elected to public office in any state or political subdivision of any State by the qualified voters thereof, any person chosen by such officer to be on such officer’s personal staff …

42 U.S.C. § 2000e(f).

The court cited the following “non-exhaustive, six factor test to evaluate defenses raised under this statutory language” employed by district courts:

(1) whether the elected official has plenary powers of appointment and removal, (2) whether the person in the position at issue is personally accountable to only the elected official, (3) whether the person in the position at issue represents the elected official in the eyes of the public, (4) whether the elected official exercises a considerable amount of control over the position, (5) the level of the position within the organization’s chain of command, and (6) the actual intimacy of the working relationship between the elected official and the person filling the position.”

After surveying the relevant case law, the court concluded that “plaintiff, as a member of the personal staff of an elected official, falls outside the definition of employee contained in Title VII.”