Statements Made By Drunk Arrestee Can’t Be Basis For Hostile Work Environment Claim

Mark Johnstone, who is white, has been an officer for the Village of Monticello Police Department in New York since 1989 and a lieutenant since 2010. On November 16, 2013, he arrested Gordon Jenkins, described as “a dark skinned natural person,” for driving while intoxicated. While Johnstone was processing Jenkins at the Monticello Police Station, Jenkins called Johnstone and other white officers a “racist,” a “cracker,” a “white mother fucker,” a “member of the KKK,” and a “Nazi,” and called an African American officer a “sellout,” an “Uncle Tom,” and a “token.”

Jenkins was, at that time, the mayor of Monticello, though he was later removed from office by an appellate court. Johnstone thereafter brought a civil rights action against Jenkins and the Village of Monticello, arguing that Jenkins’s racial comments created a hostile work environment cognizable under Title VII of the Civil Rights Act of 1964.

The federal Second Circuit Court of Appeals upheld the dismissal of Johnstone’s complaint. The Court began its opinion with a general description of what is needed to prove a hostile work environment claim: “A hostile work environment claim requires a showing [1] that the harassment was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, and [2] that a specific basis exists for imputing the objectionable conduct to the employer. Isolated incidents generally do not meet the threshold of severity or pervasiveness, but a single act will suffice if it is so severe that it works a transformation of the workplace. To decide whether the threshold has been reached, courts examine the case-specific circumstances in their totality and evaluate the severity, frequency, and degree of the abuse.”

Applying these standards, the Court found Johnstone’s complain wanting. The Court explained that “since one consideration is the frequency of the alleged abuse, Johnstone’s reliance on a single incident over the course of a nearly 30-year career weighs heavily against him, although that alone is not dispositive. More significant is that an abusive tirade by a person arrested for driving under the influence is not sufficient to alter the conditions of Johnstone’s employment.

“The Supreme Court has cautioned that the Title VII analysis requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. A professional football player’s working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field – even if the same behavior would reasonably be experienced as abusive by the coach’s secretary (male or female) back at the office.

“Jenkins’s alleged comments were severe, but they were not made in the context of an employer addressing an employee in the workplace; they were made by an apparently intoxicated citizen who was belligerent because he was being taken into custody and processed for violating the law. Being subjected to an intoxicated and verbally abusive perpetrator does not alter the conditions of a police officer’s employment or create an actionably hostile work environment, even if the person arrested happens to be the mayor.”

Johnstone v. Village of Monticello, 2017 WL 1521475 (2d Cir. 2017).