Sexual Harassment Hostile Work Environment Claim Dismissed Against Army; “Nice Booty” Comment Withstanding

In Hairston v. Christine Wormuth, Secretary, Department of the Army, N0. 20-1806, 2021 WL 3196469 (8th Cir. 2021), the U.S. Court of Appeals for the Eighth Circuit affirmed the dismissal of plaintiff’s hostile work environment sexual harassment claim against the defendant Army.

Plaintiff, a general supply specialist, alleged that her immediate supervisor (Johnson) subjected her to harassment, and that the Army retaliated against her for reporting it.

Analyzing her sexual harassment claim, the court explained:

In support of her claim that she was subject to a hostile work environment, Hairston points to three instances of alleged harassment: Johnson’s comment to her coworkers that she had a “nice booty,” the “saltshaker incident,” and Johnson’s remarks about the Victoria’s Secret show. We take seriously Hairston’s allegations and do not question that some of the conduct she has described could contribute to a hostile work environment under Title VII. See, e.g., Eich v. Bd. of Regents for Cent. Mo. State Univ., 350 F.3d 752, 759 (8th Cir. 2003) (emphasizing “the sexual touching and sexual innuendos made in [the plaintiff’s] presence over a continuous period of time” in holding that the evidence was sufficient to find sexual harassment); id. at 759 n.1 (collecting cases). But in this instance, Hairston has not demonstrated that the three incidents she cites “permeated” or “poisoned” the work environment at the Arsenal and made it a hostile one, such that it affected the terms or conditions of her employment. Cf. Baker v. John Morrell & Co., 382 F.3d 816, 828 (8th Cir. 2004) (“Conduct this court has found sufficient to establish a hostile work environment claim includes pervasive sexual innuendo and repetitive offensive touching.”); Paskert, 950 F.3d at 538–39 (explaining that “some conduct well beyond the bounds of respectful and appropriate behavior is nonetheless insufficient to violate Title VII” and concluding that several sexist and sexually harassing statements made by the plaintiff’s supervisor did not “meet[ ] the severe or pervasive standard applied by this circuit”). Because the conduct alleged here was not “severe or pervasive enough to create an objectively hostile or abusive work environment,” Harris, 510 U.S. at 21, 114 S.Ct. 367, Hairston has not made her prima facie case and the Army is entitled to judgment as a matter of law.

The court did, however, reverse the district court’s order granting summary judgment on her retaliation claim, noting that “the Army knew about and tolerated Hairston’s undesirable behavior for an extended period of time but decided to act on that behavior only in the days after she complained about sexual harassment,” leading to the conclusion that “a fact finder could reasonably infer [the Army] would have terminated [Hairston] sooner if accumulated misconduct had been the true motivation for [her] discharge.” (Internal quotation marks omitted.)

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