Sexual harassment claim rejected despite serious allegations

In Durkin v. City of Chicago (7th Cir. 8/22/03), the Seventh Circuit Court of Appeals upheld the granting of summary judgment for the employer in a case involving allegations of rather disgusting and inexcusable conduct by city police officers involved in training the plaintiff.

Allegations included: 1) one firearms instructor repeatedly yelled obscenities at the plaintiff and on one occasion kicked her leg to show the proper shooting stance; 2) another firearms instructor told her he “could teach a f—ing monkey to shoot,” referred to women as “broads,” “f—ing broads,” and “c-nts” in her presence, and said he had heard she told her husband she was not going to f–k him unless he talked to the instructor for her; 3) a classmate unzipped his pants in her presence, urinated, and said “suck this”; and 4) another classmate told her that he wanted to get her drunk and “f–k her and lick her all over.”

The court commented that this evidence, under the totality of the circumstances, “reveals boorish conduct and unexplained animosities toward [the plaintiff], but not to the extent that it meets the legal requirements of Title VII.”

In any event, the court found she could not recover because she did not go through the employer’s established procedure for reporting harassment, about which she had received training.

It rejected her argument that she failed to tell the person designated under the employer’s harassment policy about the harassment because he was friends with one of the alleged harassers and she believed it would be “futile”to do so. The court said her “feelings of futility or unpleasantness do not alleviate her duty to bring her mistreatment to the [employer’s] attention.”

While she did make complaints to various other people, and there could be situations in which such an approach would be sufficient to put an employer on notice, the court found this was not such a situation because her complaints were vague, incomplete and involved matters that were not sexual in nature. The court said the employer “simply was not provided with enough information to create some probability that it would think [the plaintiff] was being sexually harassed.”

One lesson of this case is the usefulness for defensive purposes of having a good harassment policy in place, and being able to demonstrate that an employee raising a harassment complaint was aware of the policy.

However, although the employer ultimately prevailed, it might have been preferable to have followed up on the complaints the plaintiff did make, even though it was not clear they involved sexual harassment.

Another lesson is that even cases with harassment allegations that sound really bad (and are bad enough to attract plaintiffs’ lawyers like bees to honey) can be won through proper advocacy and application of the law.

A second interesting point in this case is that the court also rejected the plaintiff’s sex discrimination claim, in which she alleged she was treated differently than male recruits. It found that she failed to establish a prima facie case of discrimination because she presented no evidence that similarly situated male employees were treated more favorably than her. Significantly, it rejected her argument that she could not present such evidence because there simply were no similarly situated male employees.

This holding is particularly helpful for smaller employers, where often there will not be any similarly situated employees for comparison purposes when disciplinary action or termination is challenged as discriminatory.

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