No employer wants a lack of civility or rude behavior in the workplace. But employers aren’t legally liable for that type of atmosphere unless the conduct crosses a certain line.
That line can be hard to draw. In this case, a federal district court ruled that a city administrator did not show his employer crossed the line.
The U.S. Court of Appeals for the Ninth Circuit agreed.
A panel of the Ninth Circuit upheld a ruling against a former city administrator. He said his workplace was a hostile job environment.
Assortment of Allegations
The employee was an administrator for the city of Tucson, Arizona.
In a lawsuit against the city, he alleged hostile work environment and retaliation under Title VII.
He relied on a variety of allegations to support his claims.
He said, for example, that he heard a co-worker say that a female co-worker’s “dress showed a lot of skin [and] her hair flowed over her shoulders in a sexy fashion.”
He asserted that the same co-worker spoke about another female co-worker by saying that “he didn’t understand the need for a woman in her late 40’s to have braces on her teeth because it wasn’t like she was going to get married and have children at that point.”
He said the same co-worker referred to him as “Pecker” and joked that a co-worker named Peter Johnson had a name that was two synonyms for the word penis.
At a meeting, the same co-worker allegedly called the employee “Bill Pecker” and made an off-color joke about a man whose name is Glasscock.
But Wait, There’s More
The same co-worker allegedly told the employee that he should “just be a man” and “suck it up” when the employee said he was undergoing a procedure to treat back pain.
Soon after, the employee filed a formal internal complaint about the co-worker with the city’s office of equal opportunity programs.
A few months later, a new supervisor “became very critical” of the employee. Specifically, the employee said the supervisor told him he was “very frustrated” and that he was not following his directions.
The new supervisor issued the employee a “document of verbal counseling.” The employee complained to a department director, saying the supervisor singled him out for simple mistakes and what he called “insanely silly reasons.”
Things did not get better from there. The same supervisor followed up the counseling document with a subpar performance review, saying that the employee needed to improve his job performance. The employee responded by firing off an email to the supervisor objecting to the supervisor’s reported claim that the employee had trouble accepting management. In the email, the employee said that he only had a problem “accepting poor management.”
Intent to Discharge
Months later, the city issued the employee a notice of intent to discharge.
He sued, alleging a hostile work environment on the basis of his sex. He added a claim of retaliation.
A federal district court in Arizona granted the city’s motion for summary judgment.
It said there was not enough evidence to show that the conduct the employee complained about, as described above, was sex-based.
He did not provide evidence of same-sex sexual desire or general hostility at work to members of his sex, the district court said.
The employee said his co-worker’s comments were “sexually charged commentary.” But the court said that comments that involve offensive sexual connotations do not, by themselves, prove the existence of an illegally hostile job environment.
Those comments did not prove discrimination against the employee based on his sex, the court said.
The employee also argued that the co-worker discriminated against him because he did not conform to male stereotypes. But the court said that neither the pecker references nor the Glasscock reference amounted to sex stereotyping. The comments “may have been inappropriate,” the court conceded, but they were not enough to prove illegal behavior.
Moreover, the court said that the comments the employee relied on, which were spread out over a period of several years, were not severe or pervasive enough to establish a Title VII violation.
Repeating a line that courts commonly use in cases like this, the court said Title VII is not a “general civility code.” As a result, it advised, sporadic offensive conduct such as abusive language, gender-related jokes and occasional teasing don’t prove a violation of Title VII.
The co-worker’s comment about dealing with back pain was based on sex. But it was insufficient by itself to prove a Title VII violation, the court said.
The employee said the city illegally retaliated against him when it changed his work schedule. He also said his supervisor retaliated against him by criticizing him and giving him a subpar review.
Schedule Change OK
But the schedule change was not materially adverse; the supervisor’s criticism of him was not an adverse employment action; and there was no evidence that the performance review lacked foundation.
As to the notice of intent to discharge, the court said a threatened dismissal is not an adverse employment action.
The district court thus granted summary judgment in favor of the city and against Peck.
The employee appealed to the Ninth Circuit, which affirmed.
The appeals court agreed with the district court’s conclusion that the employee did not suffer severe and pervasive harassment because of his sex.
Not Based on Sex
There was no evidence to suggest that the comments referencing pecker and Glasscock were sex-based, it said.
The employee insisted that the challenged comments were “sexual in nature.”
However, the appeals court said that harassment is not discrimination based on sex just because the words used have sexual connotations.
The fact that the words used were slang terms for the word penis did not prove illegal harassment on the basis of sex, it added.
Single Comment Not Enough
The comment saying to “be a man” was harassment based on sex, the appeals court said. But it was just an isolated comment that was not sufficiently severe or pervasive to be actionable harassment, it explained.
The appeals court similarly rejected the retaliation claim.
To prove unlawful retaliation, the employee had to show three things.
First, he had to show he engaged in activity protected by Title VII.
Second, he had to establish that the city subjected him to an adverse employment action.
Third, he had to show a causal link between the two.
The employee did not meet these requirements, the court said.
Mere scolding from a supervisor and the subpar evaluation were insufficient evidence of retaliation, the appeals court said.
No Causation Shown
Even if the notice of intent to discharge was an adverse employment action, the employee did not prove any causal link between that notice and his protected activity.
A total of 16 months elapsed between the time that the employee filed his internal complaint and the time that the city issued its notice of intent to discharge, the appeals court noted.
The appeals court affirmed.