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July 2010

Plaintiffs Cannot Use Isolated Comments As A Hook To Include Comments Falling Outside The Time Limitations Under Title VII

McGullam v. Cedar Graphics, Inc., 08 CV 4661 (2d Cir. June 15, 2010)

Employees in the Second Circuit alleging hostile work environment claims may find it more difficult to survive summary judgment in light of McGullam v. Cedar Graphics, which examined the types of hostile incidents employees may use to establish their claim. Often times, employees will amass a litany of offensive incidents in an attempt to establish that they were subjected to severe and pervasive conduct in violation of Title VII. The catch, however, is that Title VII requires aggrieved employees in New York State to file their EEOC charge within 300 days of the discriminatory occurrence (180 days in some states), which can limit the discriminatory events employees may use to prove their case.

In 2002, the U.S. Supreme Court in Railroad Passenger Corp. v. Morgan gave employees more leeway to allege hostile work environment claims by clarifying that the continuing violation doctrine allows them to tie untimely incidents of harassment into their claims. In support of this finding, the Morgan court recognized that a hostile work environment is usually based on events that take place over an extended period time, as opposed to a discrete act of discrimination. As a result, Morgan provided authority for employees to base their hostile work environment claims partly on untimely discriminatory conduct so long as some of the conduct occurred during the statute of limitations period. However, this did not mean that all conduct occurring outside the time period would automatically get included in a claim. Rather, after Morgan a plaintiff would have to show that the untimely incidents were a "part of" the timely discriminatory conduct.

Picking up where Morgan left off, the Second Circuit in McGullam addressed the nature of timely incidents that would, in essence, rope in those incidents that fell outside the limitations period. In McGullam, plaintiff worked in the production department, where she was subjected to several incidents of offensive and lewd sexual remarks. After making complaints, she was ultimately transferred voluntarily to another department in a separate location of the facility. In the new department, plaintiff did not experience any further incidents of harassment for about a year. Then, she began to overhear a male co-worker speaking with other male colleagues, in which he would refer to women as "chickies" and to sexual "sleep-overs." Shortly after this latest incident, defendant terminated plaintiff, who then sued, alleging that she was the victim of sexual harassment based on the entire sum of incidents she experienced during her employment.

Because the pre-transfer incidents occurred beyond the 300-day limitation period, the question became whether plaintiff could incorporate those incidents based on the isolated post-transfer comments. In granting defendant's motion for summary judgment, the district court held that the isolated comments were not "related" to the untimely comments because they alone were not severe and pervasive. While the Second Circuit affirmed the dismissal, it rejected the district court's test for determining whether the timely incidents were "sufficiently related" to the untimely incidents. According to the circuit court, Morgan, which did not explicitly establish a specific criteria or a set of factors, advised courts to employ a flexible approach and examine the totality of the circumstances.

In making its decision, the Second Circuit zeroed in on the facts themselves, holding that the incidents were not sufficiently related. In particular, the court stressed that the isolated comments occurred (1) in conversations between male colleagues, as opposed to being lewd and directly about and aimed at plaintiff, (2) in a completely different department in another sector of the building, and (3) at least a year after the initial harassing comments. Interestingly, in the course of its decision, the circuit court implicitly devised what can be characterized as a set of factors, which the concurrence expressly acknowledged. According to the concurrence, the majority specifically focused on "the commonality of the environment in which the incidents took place,?the nature of the incidents, and the temporal discontinuity between the incidents." These implied factors, while not exhaustive or dispositive of the issue, effectively help to serve as guideposts for employers and practitioners in evaluating whether an active link exists between timely and untimely discriminatory/harassing conduct.

Notably, the concurrence also went to great lengths to stress that, while untimely conduct is not actionable to establish liability, under Morgan, a plaintiff may use untimely incidents as background evidence, particularly in actions resting solely on circumstantial evidence of discrimination. The lesson to be learned is that while perceived untimely conduct may not rise to the level of actionable harassment/discrimination under Title VII, employers should remain diligent in ensuring that past conduct is properly addressed and alleviated so as to extinguish any impact the past might have on timely actions.

Employment Law

Employment Law