Sex Discrimination Claims Ready for Trial After Two Decades of Litigation

Takeaway: In a gender discrimination and sexual harassment case with a voluminous factual record and tortured procedural history—both spanning more than 20 years—the appeals court ultimately allowed most of the discharged employee’s claims to go to trial. This case serves mainly as food for thought as to why the alleged treatment of the female plaintiff persisted over years, where HR was in the process, what opportunities for dispute resolution or settlement were missed, and what changes in the company’s culture may have occurred over two decades. Employment litigation on a virtually interminable scale should be the rare exception.

The 2nd U.S. Circuit Court of Appeals held that a female telecommunications company employee’s claims of a hostile work environment, retaliatory transfer of her jobsite to a remote city, and discriminatory or retaliatory employment termination under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law should be heard by a jury. It also sent back for trial an Equal Pay Act claim.

The employee had worked for the company from 1990 until her termination in 2007. Beginning in a clerical position as a high school graduate, she earned associate and bachelor’s degrees in business and was promoted in 1997 to systems analyst—later titled sales engineer (SE)—in the company’s enterprise solutions group. SEs were generally responsible for designing and pricing telecommunications systems and for presenting design proposals. Originally an SE I, the employee was promoted to SE II in 2003.

The plaintiff sued the employer in October 2004 for gender discrimination, sexual harassment, a hostile work environment, denial of promotion, and retaliation for her complaints. She also claimed she was denied compensation equal to that paid to certain male co-workers for substantially similar work. In 2008, she filed an amended complaint alleging new acts of discrimination and retaliation, first in 2004 with the company transferring her jobsite from the city where she and her family lived to a city 160 miles away and then in 2007 with the company’s termination of her employment, purportedly in a reduction in force.

For many years, the case toggled between trial and appellate courts. In this ultimate appeal, the plaintiff contended that the trial court erred in concluding as a matter of law that there was no adverse employment action or clear retaliatory motive in her jobsite transfer. Regarding her other claims, she argued that the court erred in concluding that her evidence, viewed in the light most favorable to her, was insufficient to show a genuine issue of material fact to be tried by a jury. The appeals court substantially agreed with her and vacated the judgment as to most of the claims.

The plaintiff submitted evidence that overtly sexual or sexist comments, sexual innuendos, and gender-based disparagements were regularly directed toward women in the company’s enterprise solutions group or made about women in a long list of workplace situations. She alleged that most managers did nothing to discourage the objectionable conduct and that some managers participated. Her own manager left her a note saying that he “thought about [her] when he was in the shower,” insisted that she communicate with him only in person, demanded that she stay at the office alone with him late at night, and followed her to client lunches against her wishes. The plaintiff complained to HR that the manager laughed throughout an HR training session, but the company did nothing. The 2nd Circuit declined to agree that no reasonable person could find the working environment hostile and abusive.

The 2nd Circuit disagreed that the transfer of the plaintiff’s jobsite to a remote location could not be viewed as an adverse employment action because she was offered other options.

“There were not several realistic ‘options’ among which [the plaintiff] could choose,” the 2nd Circuit said. “Three possibilities were presented, two of which a rational juror would be entitled to view as mirages that were temporally or substantively unacceptable.”

The sole concrete option—accept the transfer—involved significantly adverse employment conditions, most of which were well known to the employer. A rational juror could find that the prospect of driving 4,000 extra miles every month to and from her job could reasonably dissuade an employee—a mother with young children and other responsibilities—from accepting those terms.

The record also was sufficient to show circumstances from which a rational juror could infer that the termination of the plaintiff’s employment was motivated by gender discrimination or by retaliation for her complaints of such discrimination, the 2nd Circuit held.

Finally, finding no error in the dismissal of the equal pay claims regarding two comparators, the appeals court did find issues to be tried regarding a third comparator.

Moll v. Telesector Resources Group Inc., 2nd Cir., No 20-3599 (Feb. 28, 2024).

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