In the wake of a series of Supreme Court decisions tightening up the standard as to what amounts to racial or sexual harassment, it has been more and more difficult for public safety officers to successfully bring harassment claims. And so it was a bit of a surprise to see one of the more conservative courts in the country, the federal Fourth Circuit Court of Appeals, reverse the dismissal of a police officer’s “hostile work environment” claim and set the matter for trial.
The Court believed that Officer Tiffany Mosby-Grant of the Hagerstown, Maryland Police Department had presented enough evidence that a reasonable jury could conclude that a hostile work environment towards women existed in the Western Maryland Police Academy, where the City’s police officers were trained. As the Court analyzed it, “sexist comments were pervasive at the Academy and were frequently made to Mosby-Grant or in her presence. Throughout the short period Mosby-Grant spent at the Academy, she heard her fellow recruits brazenly and repeatedly describe a sexual encounter with a 16-year-old girl. She also heard recruits and instructors make dozens of references to women as ‘bitches,’ ‘crazy,’ ‘white trash,’ ‘ghetto,’ and ‘prostitutes,’ was called a ‘bitch’ herself by an instructor, and was consistently subjected to selective taunting. When viewed cumulatively with the evidence of sex-based harassment, the recruits’ use of racially charged terms like ‘honky,’ ‘cracker,’ and ‘fucking Mexicans’ may also lead a jury to reasonably conclude that a discriminatory atmosphere was pervasive at the Academy.
“The conduct was also severe and humiliating in as far as it caused Mosby-Grant significant emotional distress with Mosby-Grant openly becoming emotional at work and regularly leaving work in tears. The effect and source of the harassment were also noticeable to Mosby-Grant’s superiors, including a detective and a lieutenant, and other recruits. Her doctor’s diagnosis may also support a reasonable finding that the Academy experience had an injurious effect on Mosby-Grant’s mental health.
“Further, on at least one occasion, during the EVOC course, instructors had to intervene to prevent the male recruits’ behavior from having an adverse affect on Mosby-Grant’s work performance. It may also be reasonable for a jury to infer, based on the testimony of Mosby-Grant and others, that the male recruits’ snickering during firearms testing was directed at Mosby-Grant and, but for that harassment, she would have succeeded on qualification day.”
On the other hand, the Court found inadequate evidence to allow Mosby-Grant’s race discrimination claim to go to the jury. The Court noted that there was only one occasion where Mosby-Grant overheard racist comments, and the offending recruit immediately apologized and explained that he and a biracial recruit had been joking with one another. Quoting a Supreme Court decision, the Fourth Circuit held that “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.”
The Court’s decision came in a 2-1 vote, with the dissenting judge believing that Mosby-Grant had not presented evidence that the sexually-oriented comments were “severe and pervasive, as required to establish liability.”
Mosby-Grant v. City of Hagerstown, 2010 WL 5151617 (4th Cir. 2010).
This article appears in the March 2011 issue.