The Court of Appeals has reinstated a hostile work environment claim asserted by a small-town police officer who claims her superior touched and groped her in a manner that violated Title VII and state law. 

The case is Arnold v. Town of Camillus, a summary order issued on September 23. I briefed and argued the appeal. A.J. Bosman, Esq., handled the case in the district court and assisted on appeal. 

On the summary judgment motion, the Northern District of New York held that plaintiff did not establish that the hostile work environment was “severe or pervasive” because it did not happen frequently enough. But as the Second Circuit has held over the years, it is enough for plaintiffs to allege the harassment took place on a regular basis, even if the plaintiff does not provide details about time and place. That is what happened here, and that claim is revived on appeal. The Court summarizes the evidence as follows:

 
For example, she offered testimony that “throughout the course of [her] career at the Camillus Police Department,” Defendant James Nightingale, a more senior police officer, engaged over an extended period in repeated “unwelcome and offensive touching of [her] body, including [her] arms, shoulders, and back” and, on one occasion, “above [her] groin,” even though it was “unnecessary” to perform his job duties. In addition, male officers testified that they had “never had [Nightingale] touch [them] in that way nor seen him touch other men in that fashion.” Male colleagues also observed Nightingale “repeatedly touch” Arnold, “stand directly over her while she was on the computer or sitting in a chair,” “plac[e] his hand on her back or shoulder,” and “touch[] her with his hands as he would walk by her.” Arnold also testified that Nightingale’s “conduct was frequent and noticeable enough that it became a running joke” within the police department, and that “the incidents began long before” she began documenting them in 2017.
While plaintiff did provide a summary of the harassment when she complained to the Police
Chief about Nightingale in 2017, she did not list all the incidents. That omission,
however, does not mean the jury cannot credit plaintiff’s testimony
about the other episodes. This may raise a credibility issue for trial,
but it cannot be used against plaintiff on summary judgment if she
details them in an affidavit in opposition to dismissal.
 
Plaintiff also asserted a disparate treatment claim, asserting that Nightingale did not sent her to enough training or allow her to instruct fellow officers, and that he did so because of her gender. The Court of Appeals affirmed summary judgment on this claim because plaintiff  could not show these personnel decisions were gender based. While the harasser was the same individual who assigned the training and instruction, and plaintiff heard him say that “women shouldn’t be cops,” the Court of Appeals said without significant discussion that this was not enough to prove the training and instruction denials were based on sex discrimination. The Court reasons, “The statement, offensive though it is, is not connected to any “workplace policy, practice, or decision” Nightingale made about Arnold’s training or instructional opportunities.” For this principle, the Court cites Young v. United Parcel Serv., Inc., 575 U.S. 206, 213 (2015). 
 
It is unclear to me how Young supports this holding, In Young, the Supreme Court stated that “We have also made clear that a plaintiff can prove disparate treatment either (1) by direct evidence that a workplace policy, practice, or decision relies expressly on a protected characteristic, or (2) by using the burden-shifting framework set forth in McDonnell Douglas.” I guess the Second Circuit interprets this language to mean that, to support a finding that Nightingale denied plaintiff certain workplace benefits because of sex, he had to say “women shouldn’t be cops” in the precise context of his decision to deny her training and instructional opportunities. I ask you this: would the jury require such a connection in order to find that Nightingale’s comment means he denied plaintiff these benefits because of her sex? If the jury believes plaintiff’s testimony that Nightingale thinks women should not be police officers, and it further finds that he prevented plaintiff from attending certain training sessions, would it be too much for the jury to say that sex discrimination motivated these personnel decisions?