Co-Worker's Shenanigans Did Not Create Hostile Work Environment



​An ultrasound technologist was not subjected to a sex-based hostile work environment under Title VII of the Civil Rights Act of 1964 despite a co-worker's unprofessional behavior, according to the 11th U.S. Circuit Court of Appeals. Recent relevant decisions by both the U.S. Supreme Court and the 11th Circuit itself did not require a different result. Accordingly, the appeals court affirmed the trial court's grant of summary judgment in favor of the employer.

The ultrasound technologist, who worked at the James A. Haley VA Healthcare System, was one of four employees who filed suit against the employer in August 2016. In November 2018, the trial court entered summary judgment in favor of the employer on all counts. On appeal, the 11th Circuit found that the conduct the technologist complained of did not amount to severe or pervasive sex-based misconduct. The court disposed of all other matters under appeal in ways not relevant to this discussion.

Review of a trial court's grant of summary judgment involves viewing the evidence in the light most favorable to the nonmoving party—the plaintiff. Summary judgment is proper when the moving party—the VA—is entitled to judgment as a matter of law in the absence of any genuine issue of material fact. Hostile work environment claims require proof that the conditions complained of were based on the employee's protected characteristic—in this case, sex. That does not mean such claims require that the allegedly unlawful action would not have occurred but for the plaintiff's gender. Rather, "based on" means that the actions must have been motivated by the employee's protected characteristic, the court said.

The 11th Circuit saw no meaningful difference between the motivating-factor standard it had previously applied to such claims and the Supreme Court's recently stated rule in Babb v. Wilkie: that the employee's protected characteristic must play a role in the final decision.

Likewise, the 11th Circuit's own recent decision in Monaghan v. Worldpay U.S. Inc.—a retaliation case—did not alter the standard for hostile work environment claims. A plaintiff still must show intimidation, ridicule and insult so severe or pervasive that it alters the victim's working conditions and creates an abusive working environment. That conduct also must bear sexual or other gender-related connotations to amount to sex discrimination, the court said. To meet the severe-or-pervasive test, the employer's actions must result in an environment that both a reasonable person would find hostile or abusive and one that the victim subjectively perceives to be abusive, according to the court.

The plaintiff's sexual harassment claim was based on multiple incidents of a co-worker's conduct that her supervisor failed to address when the plaintiff complained. Most of the co-worker's conduct lacked the necessary sexual or other gender-related connotations to be actionable sex discrimination, the appeals court said. For example:

• During a conversation about a male doctor to whom the co-worker was attracted, the plaintiff told the co-worker that the doctor preferred big breasts. That prompted the co-worker to lift up her shirt to prove that she was the doctor's type.
• The co-worker chest-bumped the plaintiff and gave her a high-five after she shared some good news with her.
• She also embraced the plaintiff and kissed her on the cheek after the plaintiff told the co-worker something that pleased her.

The plaintiff also objected to the co-worker's repeated use of the word "vagina," which first occurred in the context of a discussion about transvaginal ultrasounds. Apparently realizing that talk of vaginas bothered the plaintiff, the co-worker began to tease her with the word. "Although the word 'vagina' is plainly gender specific, [the co-worker's] use of it was not gender-derogatory," the court said.

Finally, there was no evidence suggesting that the co-worker's angry looks, harsh words and silent treatment toward the plaintiff were influenced by the plaintiff's sex, but rather that she was angry because the plaintiff had reported her for sexual harassment.

Even if the co-worker's conduct had been based on the plaintiff's sex, the claim still would have failed because it was insufficiently severe or pervasive to alter the terms and conditions of the plaintiff's employment, when evaluated against the facts in relevant case law.

The plaintiff also complained that her supervisor denied her request for leave, while granting the request of a male employee in the department who had less seniority. In the court's view, this was nothing more than an isolated incident insufficient to alter the terms and conditions of employment.

Accordingly, the 11th Circuit affirmed the trial court's grant of summary judgment in favor of the employer on the plaintiff's sex-based hostile work environment claim.

Tonkyro v. Department of Veterans Affairs, 11th Cir., No. 19-10014 (April 20, 2021).

Professional Pointer: It is apparent that an employee's habitual behavior that is indisputably inappropriate, unprofessional and annoying to another employee is not necessarily unlawful under Title VII. Nonetheless, from an HR perspective, the supervisor's failure to address the spate of bothersome conduct certainly put the employer at risk and ultimately did land the employer in court. Building a workplace culture that does not condone such behavior—through exemplary behavior by senior leaders, consistent messaging, and regular supervisor and employee training—is a much more effective approach then defending claim after claim—even if the claims ultimately fail.

Margaret M. Clark, J.D., SHRM-SCP, is a freelance writer based in Arlington, Va.