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D.C.: Allegation of Failure to Promote Doesn’t Support Hostile Work Environment Claim
 

By Diane Cadrain  7/10/2014

An allegation of a race-based failure to promote does not by itself make out a good claim of a racially-based hostile work environment, a D.C. federal court decided.  

Bobby Outlaw started working for the Secret Service in 1996, originally at the Civil Service grade of GS 7, unlike comparable Caucasian applicants, who, he said, were hired at GS 9. Eventually Outlaw worked working his way up to a GS 13 in 2000. In 2009 and 2010, he said, he applied for 27 different GS-14 positions, and though he claimed that he was highly qualified for all of them, he was not selected.

He sued the department under federal law on a number of bases, including the creation of a hostile work environment. The department asked the court to dismiss the claim.

To evaluate whether to dismiss the hostile work environment case, the court said that Outlaw had to show that 1) he was a member of a protected class who 2) was subjected to unwelcome harassment 3) that the harassment occurred because of his protected status; (4) the harassment was severe to a degree which affected a term, condition, or privilege of employment; and (5) the employer knew or should have known about it but failed to act.

But Outlaw, the court said, made claims without facts to back them up. For example, instead of showing “discriminatory intimidation, ridicule and insult, “ as required by the law, Outlaw relied only on his claims  that he was denied promotions, hired at a lower initial grade, and given subjective job-performance reviews. He claimed that this was "a persistent pattern of severe and pervasive harassment,” but the court responded that his claims could not alone support a hostile-work-environment claim. Indeed, the court said, courts have been reluctant to find the existence of a hostile work environment when a complaint relies only on incidents of allegedly discriminatory non-promotions and other performance based actions, rather than the evidence required to show a hostile work environment—that is, discriminatory or retaliatory intimidation, ridicule, or insult in the day-to-day work environment.

If a plaintiff were to use the discriminatory non-promotions and other performance-based actions as evidence of a hostile work environment, then the other evidence of hostility must also be present, the court said.  The court dismissed the claim.

Outlaw v. Johnson, D. D.C., Civil Action No. 13-934 (EGS) (June 23, 2014).

Diane Cadrain is an attorney who has been writing about employment law issues for more than 20 years.

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