EMPLOYMENT LITIGATION

Socially Inapt or Annoying Behavior Does Not Amount to Sexual Harassment

In Godfrey v. Princeton Theological Seminary, --- A.2d ---, 2008 WL 2951891 (N.J. August 4, 2008), two women enrolled at the Princeton Theological Seminary (the Seminary) claimed that they were harassed by an elderly tenant of Seminary housing. They filed sexual harassment claims against the Seminary under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Plaintiffs' LAD claims arose out of the Seminary's handling of their allegations of sexual harassment by William Miller. The women claimed Miller, who lived in seminary-owned housing, harassed them with requests for dates and the seminary didn't act to stop him.

With respect to plaintiffs' LAD claims, the trial court held that plaintiffs could not maintain a cause of action for a hostile environment due to sexual harassment because they failed to satisfy the four-part test announced in Lehmann v. Toys 'R' Us, 132 N.J. 587 (1993). Under Lehman, a plaintiff asserting a LAD hostile work environment claim premised on sexual harassment must show that the conduct "was ... severe or pervasive enough to make a ... reasonable woman believe that ... the conditions of employment are altered and the working environment is hostile or abusive."

Applying Lehman, the trial court held that plaintiffs failed to demonstrate sexual harassment, stating that "none of [the] incidents or communications by Mr. Miller involved any sexual language, any references to sex or any inappropriate sexual comments or suggestions." The court noted that Miller's actions never amounted to more than "annoying and bothersome conduct" to which people often are exposed. The Appellate Court affirmed trial court's grant of the Seminary's motion for an involuntary dismissal of plaintiffs' claims at the close of plaintiffs' cases-in-chief and plaintiffs appealed.

On appeal, the Supreme Court noted that in assessing whether plaintiffs met the severe-or-pervasive-conduct requirement, plaintiffs' subjective responses to the allegedly harassing conduct do not control, or otherwise affect, the determination of whether the conduct is severe or pervasive. Such a determination requires application of the reasonable-woman standard. Viewed from that perspective, the Supreme Court found that the trial court and the appellate majority correctly regarded the totality of that evidence as falling short of severe or pervasive conduct that a reasonable woman would determine to constitute sexual harassment. The court provided,

"Whether we view the encounters that [plaintiffs] had with Miller individually, or cumulatively, we arrive at the same conclusion. Although socially inapt and, no doubt, annoying, Miller's conduct did not approach sexual harassment. . . . It is important in that regard that neither of these women used her own authority to tell Miller to "go away." They cannot rely on the prospect of a money damages award from the Seminary to replace their own obligation to simply tell Miller that they had no interest in him romantically or even as a casual acquaintance. To allow the LAD to replace such basic human interaction trivializes the purpose for which the LAD was established."

In addition to citing their own encounters with Miller, plaintiffs sought to bolster their claim that Miller's conduct rose to the level of "severe or pervasive" by citing a former student's statements that (1) she was pursued by Miller when she was a student at the Seminary; and (2) past female students also had been pursued by Miller. According to plaintiffs, their knowledge that Mr. Miller engaged in similar behavior for many years increased their fear of Miller. Plaintiffs alleged that the statements about Miller's earlier interest in other female students exacerbated the severe or pervasive nature of Miller's conduct because those statements evidenced the Seminary's awareness of Miller's past acts and its failure to take effective action to curb his advances toward female students.

Regarding this, the court provided that to satisfy the severe-or-pervasive element of a hostile work environment claim, a plaintiff must submit evidence of bad conduct of which she has firsthand knowledge. The court found that here the plaintiffs did not have firsthand knowledge regarding the prior complaints against Miller; therefore, the previous encounters did not contribute additional weight to plaintiffs' claims.

Mixed-Motive Title VII Employment Discrimination Action Fails if Plaintiff Does Not Meet a Necessary Objective Qualification for the Position

In Makky v. Chertoff, --- F.3d ---, 2008 WL 3091785 (3d Cir. N.J. August 7, 2008), the Third Circuit was presented with an issue of first impression, whether a plaintiff's prima facie case in a mixed-motive Title VII employment discrimination action fails if it is irrefutable that plaintiff does not meet a necessary objective qualification for the job.

Plaintiff, an Egyptian national and U.S citizen, was a considered an expert in the field of aviation security and had been employed by the U.S. government for fifteen years. Dr. Makky had been employed as Electronics Engineer in Aviation Security Research and Development Lab of Federal Aviation Administration (FAA), which was later subsumed into Transportation Security Administration (TSA). Following the terrorist attacks of September 11, Dr. Makky fell under suspicion because of his national origin, foreign relatives and associates, foreign countries he had visited, and alleged misuse of his government computer as reasons for the action. As a result, Dr. Makky lost his security clearance and was eventually suspended without pay.

Dr. Makky's complaint alleged Title VII discrimination and violation of the Civil Service Reform Act of 1978 (CSRA). The District Court had jurisdiction over this "mixed-case" pursuant to 5 U.S.C. § 7703(b)(2). Defendants filed motion for summary judgment and the District Court dismissed all counts of the complaint. On appeal, Dr. Makky argued that the District Court erred with respect to the Title VII discrimination claim and the Due Process claim under the CSRA. Specifically, Dr. Makky argued "that his suspension without pay in September 2005 violated Title VII because discrimination was a motivating factor in the decision to suspend him without pay rather than to transfer him to another position or continue to suspend him with pay."

The Third Circuit held that the McDonnell Douglas burden-shifting framework does not apply in a mixed-motive case in the way it does in a pretext case because the issue in a mixed-motive case is not whether discrimination played the dispositive role but merely whether it played "a motivating part" in an employment decision.

Makky argued that qualification for the position, an element of the prima facie case in the McDonnell Douglas test, does not need to be established in a mixed-motive case because the essence of the mixed-motive theory is the recognition that there may be a legitimate reason, as well as a prohibited reason, for the adverse employment action. The government argued that even under a mixed-motive theory, a plaintiff must state a prima facie case in order to prevail. The government argues that at least Makky must demonstrate that he was "minimally qualified for his job."

The court provided:

We need not decide the question whether a plaintiff pursuing a mixed-motive theory of discrimination must satisfy each of the elements of the McDonnell-Douglas prima facie case, as that issue is not squarely before us. We limit our consideration to the need for plaintiff to show his or her qualification, and specifically objective qualification, for the job. . . We hold today that a mixed-motive plaintiff has failed to establish a prima facie case of a Title VII employment discrimination claim if there is unchallenged objective evidence that s/he did not possess the minimal qualifications for the position plaintiff sought to obtain or retain.

Therefore, Dr. Makky had to establish that he was minimally qualified for the position he lost. The loss of his security clearance left him unqualified for the position. As such, the Third Circuit affirmed the decision of the District Court dismissing Dr. Makky's complaint.