By Frank Ferreri, February 12, 2024
In December, we ran a cautionary piece on the Title VII perils of taking season’s greetings a bit too far. This month’s holiday raises additional Title VII concerns, albeit for different reasons.
The following cases from Federal courts and the EEOC show how Valentine’s Day observances could leave employers facing charges of discrimination on the basis of sex. As stated in Mandel v. M & Q Packaging Corp., 706 F.3d 157 (3d Cir. 2013), to succeed on a Title VII hostile work environment claim against an employer, an employee must establish that:
- The employee suffered intentional discrimination because of her sex;
- The discrimination was severe or pervasive;
- The discrimination detrimentally affected the employee;
- The discrimination would detrimentally affect a reasonable person under similar circumstances; and
- The existence of respondeat superior liability, under which an employer is liable for one of its employee’s actions.
Porchia v. Cohen, No. CIV. A. 98-3643 (E.D. Pa. June 4, 1999)
Key facts: A Defense Finance and Accounting Service file clerk received “a series of inexpensive gifts” from a coworker with whom she had developed a casual friendship. While the two were working overtime, the coworker allegedly raped the clerk. About two weeks later, the the clerk received a Valentine’s Day card and roses from the coworker. The clerk went on sick leave, complaining of headaches. Due to the clerk’s temporary status and extended leave, the agency proposed to terminate her before agreeing to allow her to resign. The initial EEOC investigator concluded that the level of interaction between the clerk and the coworker was abnormal and that the Valentine’s Day gifts triggered an emotional strain on the clerk. Eventually, DFAS dismissed the complaint on timeliness grounds, and the clerk brought a Title VII action in court.
Ruling: The court entered summary judgment in the agency’s favor after finding the evidence insufficient to establish a genuine issue of material fact regarding respondeat superior liability. In particular, the court highlighted that the agency did not have actual notice of the alleged rape until the clerk told the initial EEO counselor about it. “[The clerk] admits that she did not report the sexual assault to anyone at the [a]gency until she brought her initial EEO complaint … , nearly six months after she resigned,” the court wrote. “Furthermore, there is no evidence that the Agency had actual notice that [the coworker] was harassing [the clerk.]”
Johnson v. West, 218 F. 3d 725 (7th Cir. 2000)
Key facts: A Department of Veterans Affairs employee alleged her supervisor sexually harassed her by:
- Having sexual intercourse with her against her will.
- Sending her a greeting card with a pre-printed message stating “[i]t’s nice to be able to share the simple things of life with you: a quiet walk, a candlelit dinner, an evening by the fire … sex that registers on the Richter Scale” and signed the card “Luv ‘Chief’ a/k/a Will a/k/a Maurice a/k/a Batman a/k/a Darkman.”
- Often touching the employee against her will.
- Verbally abusing the employee when she began dating another man.
- Giving the employee a Valentine’s Day card that read, “I can’t imagine loving you more than I do today … but tomorrow I will. HAPPY VALENTINE’S DAY, SWEETHEART.”
The court explained that the Valentine’s Day card was the “last straw” that led the employee to pursue Title VII remedies against the VA. The District Court found the employee was subjected to a hostile work environment, but also determined that the VA took reasonable and adequate measures to prevent it by removing the supervisor from his position before later reassigning the employee to another department. The employee appealed to the 7th U.S. Circuit Court of Appeals.
Ruling: The 7th Circuit reversed the District Court decision, holding that whether the employee acted unreasonably in failing to report the alleged harassment for nearly a year was an unresolved factual issue. Because of this, it sent the case back for additional Title VII analysis.
Ivy E. v. Department of Health and Human Services, Centers for Medicare and Medicaid Services, No. 0120162714 (EEOC OFO Nov. 15, 2016)
Key facts: A Supervisory Health Insurance Specialist alleged she was subjected to discrimination on the basis of sex when, among other things, she received an email from a director inquiring as to what “wets her lips.” The specialist also received personal notes and Valentine’s Day cards from the director. The agency dismissed the complaint on timeliness grounds, so the specialist appealed.
Ruling: OFO found that the claim was timely because the delay was attributed to slowness in interoffice mail, something the specialist could not have anticipated.
Paola v. DeJoy, 624 F. Supp. 3d 305 (W.D.N.Y. 2022)
Key facts: A city carrier assistant claimed her supervisor stalked her. It started after the employee rejected the supervisor’s advances, told him she did not want a relationship with him, and let him know that they could no longer be friends. This behavior included a Valentine’s Day text message. The assistant filed a formal complaint with the Postal Service EEO office, and the agency issued a FAD with a finding of no discrimination. The assistant brought a Title VII action in court.
Ruling: The court held the agency was entitled to summary judgment on the assistant’s claim because the alleged harassment occurred outside the workplace and after the assistant went on extended medical leave. “While a court may consider conduct alleged to have occurred outside the work environment as part of the ‘totality of the circumstances’ when assessing a hostile work environment claim, such actions ‘cannot, in themselves, give rise to such a claim; what matters in the end is plaintiff’s work environment,’” the court wrote.
Walker v. SBC Services, Inc., 375 F. Supp. 2d 524 (N.D. Tex. 2005)
Key facts: The employee allegedly heard a supervisor make “sexually explicit, crude, and vulgar comments in the employee’s presence. On one occasion, the supervisor was discussing Valentine’s Day and said that she would be giving her husband “p****” for Valentine’s Day, “all the p**** he wants[,]” and “[h]e can ride this cat until it [is] fat and sw[ollen].” Based on these remarks and others, the employee brought a Title VII action, alleging a hostile work environment.
Ruling: Finding that however “boorish, immature, and vulgar” the supervisor’s remarks were, they were not “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” The court explained that the alleged behavior was “especially unbefitting of one holding the title of supervisor,” but did not fall within the “purview of Title VII.”
Scalisi v. Limerick Township, No. Civ. A. 05CV3413 (E.D. Pa. Nov. 10, 2005)
Key facts: A Valentine’s Day message in the local newspaper appeared to be directed to an employee. The message read “Dear Sgt., Spring is right around the corner, just like me. Look outside, see a Robin by the tree. Love Azalea.” The employee worked for a police department, her name was Robin, and she lived on Azalea Court. This one of a series of incidents that took place over several months. The employee filed a Title VII lawsuit in court.
Ruling: In rejecting the employee’s claim, the court explained that the incidents at issue, including the Valentine’s Day message, were not “so severe as to the alter the terms of … employment or to make her working conditions so intolerable that the average reasonable person in her position would have felt forced to resign.” Thus, the court dismissed the case.
EEOC v. Love’s Travel Stops & Country Stores, Inc., 677 F. Supp. 2d 1176 (D. Ariz. 2009)
Key facts: The employee allegedly experienced sexual harassment at work on several occasions, including the following actions by different customers:
- Making frequent references to having sexual intercourse with her.
- Telling her that due to her short height she could perform oral sex on him without getting on her knees.
- Trying to touch her hand and telling her he would wait until she got off work so he could “get inside [her].”
- Giving her a sexually suggestive Valentine’s Day card.
When reporting the harassment, the employee was allegedly told, “This is a truck stop. Get used to it. Deal with it.” EEOC sued her employer under Title VII on her behalf.
Ruling: The court denied the employer’s motion for summary judgment because the employer presented no evidence to controvert testimony stating that the employer took no action to address repeated complaints of sexual harassment and “instead simply ignored the complaints.”
A generalized recognition of Valentine’s Day could be a nice way to inject some brightness into wintertime at work (think heart decorations and cupcakes), but in conversation heart language, “say yes” to Title VII compliance by ensuring that charges of sexual harassment are addressed promptly and thoroughly. It also is worth training employees that what they think might be a sweet nothing could create a hostile work environment, so opting against a show of Valentine’s Day affection in the workplace or directed to coworkers is always a smart legal decision.
For more guidance, join us for Navigating Complex Hostile Work Environment Harassment Cases on Feb. 20. [email protected]