Title VII Sexual Harassment Claim Dismissed Due to Failure to Follow Internal Grievance Procedures

In Magnusson v. County of Suffolk, No. 16-1876-CV, 2017 WL 1958699 (2d Cir. May 11, 2017) (Summary Order), the Second Circuit affirmed the dismissal of plaintiff’s sexual harassment claims under Title VII and 42 U.S.C. 1983 (Equal Protection).

The court held that plaintiff’s Title VII’s claim was appropriately dismissed, because she did not follow the company’s internal grievance procedures.

From the Order:

We need not reach the question of whether the County’s conduct constitutes sex discrimination that would be covered under Title VII because the Plaintiff failed to follow the County’s internal grievance procedures. “An employer may defend against [a hostile work environment claim] by showing both (1) that it had installed a readily accessible and effective policy for reporting and resolving complaints of sexual harassment, and (2) that the plaintiff unreasonably failed to avail herself of that employer-provided preventive or remedial apparatus.” Pa. State Police v. Suders, 542 U.S. 129, 134 (2004).

As the district court explained, the County maintained a sexual harassment policy for the entire term of the Plaintiff’s employment. Special App’x at 20. The Plaintiff received documents instructing her on the DPW’s sexual harassment reporting procedures from both the DPW and her own union. Id. And Plaintiff never provided appropriate County employees with any notice of the alleged incidents of harassment before initiating the EEOC action. Id. Accordingly, even if the Plaintiff had an otherwise viable hostile work environment claim, the County is protected from Title VII liability under this affirmative defense.

*2 There are instances where an employee’s failure to report sexual harassment can be excused if the employee has a credible fear of retaliation or believes that the complaint would be futile. See, e.g., Leopold v. Baccarat, 239 F.3d 243, 246 (2d Cir. 2001). On this record, we conclude that Plaintiff’s conclusory assertions that she feared retaliation or that complaining would be futile “fail as a matter of law to constitute sufficient evidence to establish that her fear was ‘credible.’ ”

In affirming the dismissal of plaintiff’s hostile work environment claim under 42 U.S.C. § 1983, the court explained that “[t]he incidents in 2003 and 2012, while inappropriate, occurred nine years apart, and the Plaintiff has not presented evidence that these incidents unreasonably interfered with her job performance … or were sufficiently severe … to alter the conditions of [the Plaintiff’s] employment and create an abusive working environment”.

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