Police Officer’s Sexual Harassment / Hostile Work Environment Claim Survives Summary Judgment

In Parra v. City of White Plains et al, No. 13 CV 5544 (VB), 2016 WL 4734666 (S.D.N.Y. Sept. 9, 2016), the court denied defendants’ motion for summary judgment on plaintiff’s hostile work environment claim (but granted it with respect to plaintiff’s retaliation claim).

In sum, plaintiff – a police officer – alleges that two male co-workers (Tribble and Johnson) subjected her to sexual harassment, and that she was retaliated against for complaining about it.

As to plaintiff’s hostile work environment claim, the court initially concluded that Tribble’s actions could be included as part of her claim:

Defendants argue Tribble’s alleged actions do not support plaintiff’s claim because, although violent, no reasonable employee could find they were sexual in nature. The Court disagrees. Plaintiff claims that, on several occasions, Tribble grabbed her by the neck and arm and flung her around. Admittedly, this description does not, by itself, capture the alleged sexual nature of Tribble’s physical contact with plaintiff. Nevertheless, Officer Orellana’s comment, “whoa, he shouldn’t be touching you like that” (Pl.’s 56.1 Counter-Statement ¶ 13 (emphasis added)), and Lt. Knox’s comment that he “thought [Tribble and plaintiff] had something going on from the way he was touching [her]” (Id. ¶ 14) are evidence that the touching objectively looked sexual. Thus, Tribble’s alleged actions are part of the hostile work environment claim.

Since plaintiff could not show that Johnson did not have the “power to make tangible employment decisions” and was hence not plaintiff’s “supervisor”, she was required to “prove that the City was negligent in controlling working conditions.”

The court found that she did so:

Although it is a close call, plaintiff has submitted sufficient evidence to create a genuine issue of material fact as to whether the City was negligent in controlling working conditions.

A plaintiff may show an employer is negligent in controlling working conditions by, for example, failing to “monitor the workplace … respond to complaints … [or] provide a system for registering complaints,” or “effectively discourag[ing] complaints from being filed.” Vance v. Ball State Univ., 133 S. Ct. at 2453.

First, there is some evidence the City failed to respond to harassment complaints. In particular, plaintiff points to the City’s decision not to discipline Johnson after the 2002 and 2009 complaints alleging sexually inappropriate behavior, as well as its determination that plaintiff could be transferred into Squad 8 in November 2011 even though she had previously complained of harassment by Tribble in 2007.

Second, there is some evidence the City discouraged complaints, namely that Castelli allegedly called plaintiff a “complainer” in December 2011 when she reiterated her discomfort approaching Tribble for supervisory guidance, and that Bradley dismissed Tribble’s allegedly harassing conduct as “just jokes.”

Finally, there is the alleged frequency of Johnson’s sexual comments toward plaintiff for over six years. One of the inferences a fact-finder could draw from the City’s ignorance of these comments despite their frequency is that the City failed to monitor workplace harassment.

Therefore, a reasonable fact-finder could conclude the City was negligent in controlling working conditions. Accordingly, summary judgment is not warranted.

The court, however, granted defendants’ motion on plaintiff’s retaliation claim, finding (among other things) that plaintiff “failed to show a causal connection between this complaint and any of the actions she claims were retaliation.”

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