Wednesday, September 14, 2016

When it’s better to be lucky than good

Employers, sometimes it is better to be lucky than to be good. Case in point? Graves v. Dayton Gastroenterology [pdf], decided yesterday by the 6th Circuit.

Graves is your garden variety supervisor-sends-inappropriate-text-messages-to-female-subordinate-case. The two texts at issue—“I [sic] happy for you, you just have fun and wild sex,” and “You and your husband lay out a wonderful dinner an [sic] have wild sex on the table!!!!! I do think about sex all the time. I [sic] just not getting it.”

After Graves complained to the CEO, the supervisor, Schum, spent the next two months treating her poorly—he addressed her curtly, refused to respond to her questions about work assignments, would not relieve her from her duties despite regularly relieving other employees, gave her the most difficult assignments, denied her lunch breaks on several occasions, threw a chart at her, failed to provide her with updated work schedules, and denied her requests for days off. As a result, Graves resigned and sued.

The 6th Circuit had little difficulty concluding that the two isolated text messages could not support a sexual harassment claim, because the alleged harassment was neither sexual in nature nor revealed an anti-female animus, and because the texts were not objectively severe or pervasive.
There is no suggestion in the record that Schum or any other Dayton Gastroenterology employee expressed an anti-female animus toward Graves. There is no evidence in the record of any other sexual statements, any physical sexual harassment, or any use of derogatory language by Schum. Graves does not allege, for example, that Schum asked her to have sex with him, touched her or threatened to touch her, made any comments about her body, used language derogatory to women, or treated any of the other women in the office inappropriately. … 
Second, even if Schum’s conduct was based on Graves’s gender, it was objectively neither severe nor pervasive enough to constitute a hostile work environment. At most, Schum’s text messages were isolated incidents that do not “amount to discriminatory changes in the terms and conditions of employment.
What about the retaliation based on the poor treatment Graves received after complaining about the text messages? You can’t win a claim you don’t file.
Schum’s behavior might have formed the basis of a successful retaliation claim, but Graves did not plead such a claim in this case. We decline to stretch the hostile-work-environment analysis to fit what is essentially a retaliation claim, because a legal framework for addressing such claims already exists. 
Oops. Like I said, sometimes it’s better to be lucky than good.