Sexual Comments Alone Often Not Enough For Harassment Claim

Nora Chaib was a correctional officer with the State of Indiana’s Pendleton Correctional Facility, a maximum security prison. After she was hired, Chaib participated in six weeks of classroom instruction at the New Castle Correctional Facility followed by training with a field training officer, during a six-month probationary period. Chaib received on-site training at Pendleton from various trainers, including Field Training Officer Leonard Van Dine. In November 2008, Chaib began her six-month probationary training period with Van Dine as her trainer. Almost immediately, Van Dine made sexually offensive comments to Chaib. On one occasion, Van Dine made the sexually suggestive remark that he and his wife liked to have “threesomes” and inquired if Chaib “liked threesomes” as well. Chaib told Van Dine that she did not like the way that he talked to her, and shortly thereafter, Van Dine removed himself as her training officer.

However, during her six-month probationary period, Chaib would still have frequent contact with Van Dine in a part of the Pendleton facility known as I Complex and Van Dine continued to make sexually offensive comments. Specifically, in a second encounter, Van Dine asked her: “Did your nipples get hard yet?” when she was working outside in the cold weather during her shift. Chaib also recalled a third incident with Van Dine, where he asked her: “Do you bend over when you pick up something or do you squat?” Van Dine frequently harassed Chaib about her work performance, cursed at her and made the comment: “Do your fucking job.” At the time these incidents occurred, Chaib did not report Van Dine’s harassing conduct to her direct supervisor. Instead, she waited until July 15, 2010, when she reported her complaints regarding Van Dine’s offensive comments in a memorandum to Lieutenant Eric Weston, who referred Chaib to the Human Resources office to file a formal complaint against Van Dine. On July 29, 2010, the Human Resource investigator concluded that while Chaib’s specific allegations could not be substantiated, the investigation did substantiate that Van Dine “participate[d] in conduct unbecoming of an Officer.” Additionally, the investigation substantiated unprofessional and inappropriate behavior on Chaib’s part. Specifically, the investigation concluded that Chaib would occasionally threaten co-workers with harassment charges, would not accept responsibility for her actions, and would exhibit argumentative behavior when asked to perform certain tasks. As such, the Human Resources manager recommended to the assistant superintendent of operations that both Chaib and Van Dine receive written reprimands for unprofessional conduct. After Van Dine was reprimanded, Chaib had no further contact and no further instances of sexual harassment from Van Dine. After a series of disciplinary incidents, Chaib eventually resigned from her job. She then sued the State claiming, among other things, sexual harassment.

A federal court rejected Chaib’s harassment claims. The Court held that Chaib needed to establish that: (1) She was subjected to unwelcome harassment; (2) the harassment was based on her sex; (3) the conduct was sufficiently severe or pervasive so as to alter the condition of her employment and create a hostile atmosphere; and (4) there was a basis for employer liability. To satisfy the third element, Chaib must demonstrate that her co-worker’s behavior was both objectively and subjectively abusive. An objectively hostile environment is one which a reasonable person would find hostile or abusive. In determining whether a plaintiff meets this standard, courts consider all the circumstances, including the severity of the allegedly discriminatory conduct, its frequency, whether it’s physically threatening or a mere offensive utterance, and whether it unreasonably interferes with the employee’s work performance.

“While Chaib has presented sufficient evidence to demonstrate that she received unwelcome harassment based on her sex, the sex-based conduct directed at Chaib was not objectively severe or pervasive. Viewing the record in the light most favorable to Chaib, Van Dine made three inappropriate comments to Chaib that were sexual in nature including his comment about ‘threesomes,’ whether her nipples were hard, and if she likes to bend over or squat. Beyond these isolated comments, Van Dine never physically touched or threatened Chaib in any way. Further, even if Chaib could establish that the sexual comments from Van Dine were objectively severe or pervasive, there is no basis for employer liability. An employer is liable for a hostile work environment claim if the plaintiff’s supervisor created the hostile work environment, or if a co-worker created the hostile work environment and the employer was negligent either in discovering or remedying the harassment. Here, Van Dine did not have the authority of a supervisor with respect to his position at Pendleton or in his working relationship with Chaib. Thus, Chaib must establish employer liability based on a coworker-created hostile work environment. As such, Chaib must proceed under a negligence theory and present ‘competent evidence that her employer was negligent either in discovering or remedying the harassment directed at her.’

“Chaib has not set forth sufficient evidence to establish a genuine issue of material fact with respect to the State’s duty to investigate and take remedial action when presented with an allegation of harassment. Once Chaib filed a complaint with Lieutenant Weston the State satisfied its duty by launching an immediate investigation. The State subsequently reprimanded Van Dine for unprofessional behavior in regards to his comments. And Chaib confirmed in her deposition testimony that she no longer received offensive comments from Van Dine after the investigation concluded. In fact, Chaib testified that once she reported Van Dine to supervisors and the Human Resource department and he was reprimanded, she did not work with or see him again. Thus, even if Van Dine’s conduct was actionable, by taking prompt remedial actions to remedy the situation after she complained, the State satisfied its obligations under Title VII.”

Chaib v. Indiana, 2013 WL 786778 (S.D. Ind. 2013).