By Lindy Korn
The Daily Record Newswire
A female former secretary alleged her male boss’s misconduct included threats to “choke” or “kill” her raised a triable issue of hostile environment sexual harassment under Title VII of the 1964 Civil Rights Act, the U.S. Court of Appeals for the Second Circuit ruled, June 29, 2010. Kaytor v. Electric Boat Corp. (2d Cir., 09-1859).
Sharon Kaytor began working in 1973 in Groton, Conn. for Electric Boat. In 1998, she was assigned as a secretary for manager Daniel McCarthy. In 2004, McCarthy began to make Kaytor feel uncomfortable with offensive sexual comments, incidents in which he stood too close to her, and incidents in which McCarthy stated his desire to “choke” Kaytor, to “see her in her coffin,” and to “kill” her, the plaintiff alleged.
Kaytor said co-workers who overheard McCarthy’s comments warned her to be careful, but Kaytor said she mostly “brushed off” McCarthy’s conduct as symptoms of a “difficult period” for the recently divorced supervisor. In April 2005, McCarthy gave Kaytor “an unattractive potted” plant, along with a card in which McCarthy wrote that he hoped the plant would bring Kaytor “pleasure in the years ahead.”
Kaytor construed the gift and note as derogatory and sexually suggestive, given previous similarly suggestive remarks McCarthy had made to her. Kaytor did at this point realize that her boss had designs on her.
When Kaytor complained to the human resources department, they investigated immediately and reassigned Kaytor to work for another manager. But Kaytor contended that the company also severely cut her job responsibilities, that the new supervisor constantly berated her, and that co-workers ostracized her because she had complained about McCarthy.
In December 2006, Kaytor sued Electric Boat, alleging sexual harassment under Title VII. In January 2007, Electric Boat terminated Kaytor, allegedly for refusing the company’s order to see a psychiatrist. Kaytor contended that although she disagreed with the order, she had made an appointment to see the psychiatrist at the time she was fired. She added retaliation claims to her Title VII complaint.
The U.S. District Court for the District of Connecticut ruled in favor of Electric Boat on all claims, and Kaytor appealed.
Partially reinstating the sexual harassment and retaliation suit, the Second Circuit rejected the district court’s finding that Kaytor failed to establish a Title VII prima facie case because McCarthy’s conduct did not occur “because of her sex and was not “severe or pervasive” enough to create a sexually hostile work environment.
“The district court should not have excluded from consideration Kaytor’s testimony as to McCarthy’s stated desires to choke her, to see her in her coffin, and to kill her,” the appeals court said. According to Kaytor’s testimony, which must be credited on a motion for summary judgment, the threats were uttered by one who “had designs on” Kaytor and was miffed that she would not “fall for his advances. A rational juror could permissibly infer that McCarthy’s harsh treatment of Kaytor was the result of her spurned advances.”
Further, the court held, “A rational juror also could infer from McCarthy’s overtly sexual comments that the facially gender neutral threats he directed at Kaytor were in fact ‘because of her sex.’” Kaytor may also pursue a Title VII retaliation claim based on her allegations that the company effectively demoted her and stripped her of job duties because she had complained about McCarthy, the appeals court said.
This decision gives guidance as to the expansive notion of a hostile work environment based on sex. The threats of violence were taken into consideration based on sexual context of prior comments made to Kaytor, thus understood as a reaction to a sexual advance and rejection.
The Second Circuit’s crediting Kaytor’s testimony that the threats were in reaction to her not falling for his advances, at the summary judgment stage, is important since it is for the jury to decide whether that inference makes sense.
Lindy Korn practices at The Law Office of Lindy Korn and can be reached at Lkorn@diversitytraining.com or (716) 845-5500.
