Parole Officer Supervisor's Sex Harassment Case Reinstated

Circuit Finds Claim of Sex Harassment Anything but 'Minor'
The New York Law Journal by Joel Stashenko  -  May 7, 2012

 A federal appeals court has reinstated the hostile work environment claim of a parole officer who contended that her breasts were touched three times by a female supervisor in her agency. The May 4 decision by a unanimous panel of the U.S. Court of Appeals for the Second Circuit reversed a grant of summary judgment for the state by Eastern District Judge Nicholas Garaufis, who had described the alleged conduct as "relatively minor." "The repeated touching of intimate parts of an unconsenting employee's body is by its nature severely intrusive and cannot properly be characterized as abuse that is 'minor,'" Judge Amalya Kearse wrote for the circuit in Redd v. New York State Division of Parole, 10-1410-cv. The Second Circuit also disputed the use of two other characterizations of the alleged touching incidents made by Garaufis —"incidental" and "episodic"— when he dismissed Fedie Redd's claim of a violation of Title VII of the Civil Rights Act, 42 U.S.C. §2000e. Far from "minor" or "incidental" contact, the circuit said that Redd was alleging "one of the most severe forms of sexual harassment." Redd claimed that Sarah Washington had brushed up against Redd's breasts with her hand in Washington's office, rubbed up against her breasts while in a hallway of a Division of Parole office in Queens, walked up behind Redd as she was seated behind a computer and felt her breasts. The incidents allegedly occurred within five months of each other in 2005, and Redd interpreted them as sexual in nature, the court noted. Evidence that Washington touched Redd's breasts, never apologized, sought to have Redd come to Washington's office even though Washington was not her direct supervisor and that Redd said she felt uneasy being in Washington's office would all allow "a rational juror to find that Washington's conduct was not only severe, but pervasive," Kearse wrote. Garaufis' dismissal of the matter with such outstanding questions for jurors to decide was in error, the Second Circuit said. It also took issue with the judge's determination that Redd had not sufficiently proven that Washington was homosexual or was sexually interested in her, nor attributed any suggestive or sexual remarks to Washington.

But the Second Circuit cited several U.S. Supreme Court decisions, including Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), in which the court discussed the need to keep alleged incidents of sexual harassment in the context in which they occurred and that there could be subtle differences in the way co-workers of the same gender interact. In the Redd matter, the circuit said a juror might well have drawn inferences from Washington's alleged touching of Redd, even though Washington did not say any words that described her intentions. "If the claim were that a supervisor—of either gender— stated to a female employee 'I want to feel your breasts,' or state to a male employee 'I want to feel your penis,' a jury could easily infer that that stated desire was because of the employee's sex," Kearse wrote. "A district court could not properly rule as a matter of law that that gender-specific harassment was not because of the employee's sex." Nor, "is it more permissible to rule as a matter of law that the supervisor's harassment was not because of the employee's sex when the supervisor repeatedly—albeit silently—touched, rubbed up against, and felt those gender-specific, intimate parts of the employee's body," the court added. Judges John Walker Jr. and Reena Raggi joined in Kearse's decision. Maia Goodell of Vladeck, Waldman, Elias & Engelhard said she was "very pleased" by the ruling. "We think they got it right," she said in a brief interview. Redd complained unsuccessfully to the Division of Parole's director of human rights and the Equal Employment Opportunity Commission about the work environment before suing her employers in the Eastern District. She acted pro se before hiring Goodell for her appeal in the Second Circuit. At a deposition for the Eastern District case in which Redd directly questioned Washington, Washington denied touching her "in any inappropriate manner." "What does inappropriate manner mean?" Washington asked. "Put your hands on me?" Redd asked. "No," Washington responded. A human resources official within the agency also denied ever receiving a formal complaint from Redd about being harassed. Redd's immediate supervisor was Senior Parole Officer Clifford Crawford. Washington headed the Queens office where she worked until from 1990 until 2010. Assistant Solicitor General Laura R. Johnson argued for the defendants, which include the Division of Parole and the state of New York. The attorney general's office declined to comment. The Second Circuit decision was in keeping with the reasoning of Magistrate Judge Lois Bloom's recommendation from Brooklyn on March 2, 2010, that the defendants' request for summary judgment on the sexual harassment claim be denied. The magistrate judge held that Redd had alleged enough facts for a jury to possibly conclude that Washington's alleged conduct was "sufficiently severe and pervasive" as to create a "hostile work environment." Garaufis rejected that recommendation in a memorandum and order dated March 24, 2010. Joel Stashenko can be reached at jstashenko@alm.com.