On Oct. 6, the Second Circuit decided Raspardo v. Carlone (No. 12-1686-CV; 12-1870-CV) which was an appeal from the United States District Court for the District of Connecticut, denying the defendant police supervisor’s motions for summary judgment in the plaintiff’s employment discrimination action brought pursuant to Section 1983.
This case provides much guidance on the issue of individual liability in Section 1983 hostile work environment claims. Public employees have a “clear right, protected by the Fourteenth Amendment, to be free from discrimination on the basis of sex in public employment,” Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107 (2d Cir. 2004).
The Equal Protection Clause protects such employees from sex based workplace discrimination and disparate treatment. However, you cannot sue individuals under Section 1983 unless they personally committed sexual harassment that was severe and pervasive. The Court of Appeals (Droney, Winter and Lynch) says, “our prior cases have established only that when a plaintiff alleges that multiple individual defendants have engaged in uncoordinated and unplanned acts of harassment, each defendant is only liable under Section 1983 when his own actions are independently sufficient to create a hostile work environment.”
This means for qualified immunity purposes, “we therefore cannot say that it is clearly established law that an individual defendant has violated a plaintiff’s equal protection rights if he has not personally behaved in such a way as to create an atmosphere of severe or pervasive harassment.”
In sexual harassment cases under Section 1983, supervisors can be liable for harassment if they were grossly negligent in supervising the subordinates who committed the harassment. “The standard of gross negligence is satisfied where the plaintiff establishes that the defendant-supervisor was aware of a subordinate’s prior substantial misconduct but failed to take appropriate action to prevent future similar misconduct before plaintiff was eventually injured.”
The court adds, “A supervisor is not grossly negligent, however, where the plaintiff fails to demonstrate that a supervisor knew or should have known of a problematic pattern of employee actions where the supervisor took remedial steps immediately upon learning of the challenged conduct.” The standards for supervisor harassment under Section 1983 (gross negligence) are more difficult for plaintiffs to satisfy than under Title VII, where you need only show that management was negligent in handling the employee’s sexual harassment allegations.
In this case, many of the defendants are let off the hook because the harassment is not severe or pervasive, or because the bad behavior was not based on gender. However, one defendant did violate clearly established sexual harassment law under Section 1983:
Raspardo cites four principal incidents to support her hostile work environment claim against Carlone. In 2007, Carlone asked Raspardo if she was “planning to go out drinking or have sex with her boyfriend,” another officer in the department, told Raspardo that her uniform should be more “form-fitting,” and attempted to massage Raspardo’s shoulders. In early 2008, Carlone showed Raspardo a suggestive photograph in a magazine of a woman wearing tactical gear that was focused on the woman’s buttocks and passed the photo around to other male officers who were also present, saying that the woman’s buttocks looked like Raspardo’s.
Raspardo told Carlone that his comments were not funny or ignored him and left immediately during these incidents. Raspardo also stated in a sworn statement to the NBPD during its investigation of Carlone that Carlone, her direct supervisor at the time, “made references of a sexual nature to her body parts on at least over 10 occasions,” particularly concerning her buttocks, often in front of other officers, which made her “feel disrespected, angry, and embarrassed.” She reiterated these allegations in her later deposition testimony and interrogatory answers.
The four principal incidents, including unwanted touching and vulgar comments in front of other officers, when combined with the “over 10” additional comments about Raspardo’s body, all over a period of just one year, would be amply sufficient to permit a jury to find a sexually hostile work environment. The evidence presented by Raspardo, if true, demonstrates that Carlone violated her constitutional right to equal protection through this sexual harassment.
A complete read of this lengthy decision is quite instructive.
Lindy Korn practices at The Law Office of Lindy Korn and can be reached at firstname.lastname@example.org, (716) 856-KORN (5676) or www.lindykorn.com.