#MeToo Movement Insufficient to Revive Dismissed Case

July 31, 2018  |  By: Lawrence Bluestone, Esq.

The U.S. District Court for the District of New Jersey denied an employee’s request to reopen her case based on alleged changed attitudes “post-Weinstein.”  The Court also denied the employer’s request for sanctions but cautioned the employee’s attorney that the employee’s motion “bordered on frivolous.” 

Background Facts

Taylor Ballard worked as a retail sales consultant at a New Jersey store operated by AT&T Mobility Services LLC (AT&T).  In her lawsuit against AT&T, Ballard contended that one of her coworkers made lewd comments to her about her physical appearance and took unsolicited photographs of her on his Google Glasses.  Ballard reported the incident to her immediate supervisor.  Ballard’s supervisor spoke to the coworker (who denied the allegations) and ultimately warned him about inappropriate conduct.  Ballard claimed during litigation that coworkers would regularly discuss sexual activities, but she made no other reports to management.

After someone flagged the incident to AT&T’s Equal Employment Opportunity (EEO) hotline, AT&T’s EEO office conducted a full investigation, interviewing several witnesses.  The EEO office could not corroborate the story but ordered all of the employees and managers at the store to participate in training sessions about appropriate workplace conduct.

After the alleged incident, Ballard only attended work 3 out of her 16 scheduled shifts.  During her penultimate shift, Ballard arrived out of uniform and told her supervisor she was turning in her company phone.  After a final warning, Ballard’s employment was terminated.

Court Awards Summary Judgment to AT&T

Ballard asserted hostile work environment, constructive discharge and retaliation claims under federal and state law.  On August 25, 2017, the District Court granted AT&T’s motion for summary judgment on all claims and dismissed her complaint.

Even viewing all of the facts favorably to Ballard, the Court found that Ballard had not demonstrated the existence of a “hostile work environment” under federal and state law.  The single incident that Ballard reported, the Court held, was not “severe” or “pervasive” and so it did not rise to the level required to show a hostile work environment claim.  Ballard’s generalized allegations of other sexual comments were not specific enough and did not rescue her claim.

The Court dismissed Ballard’s constructive discharge claim both because she could not show that she voluntarily resigned – she was fired – and because a constructive discharge claim requires a showing of even more severe or pervasive conduct than a hostile work environment claim.  Since Ballard’s hostile work environment claim was legally insufficient, so was her constructive discharge claim.

On her retaliation claim, Ballard contended that AT&T fired her because she reported her coworker’s conduct.  The Court found the evidence demonstrated Ballard was fired because of her persistent failure to attend work, not because of her report of the conduct, precluding a retaliation claim.

Court Denies Request To Reopen Case Due to “Post-Weinstein” Change in Attitudes

Ballard did not appeal the summary judgment decision to the Court of Appeals.  Instead, four months later, in December 2017, Ballard filed a motion to “set aside” the Court’s summary judgment in AT&T’s favor and revive her case.

Ballard’s argued that the highly publicized allegations against Harvey Weinstein and resulting #Metoo movement have changed “common sense” and “industry standards.”  Based on these new standards, Ballard urged the Court to revisit its decision as to what constitutes a hostile work environment.

Rejecting Ballard’s argument, the Court noted that it was not based on new evidence and that all of the current events Ballard discussed bore no relation to AT&T or to her specifically.  The Court refused to draw any inferences or conclusions from other allegations of sexual harassment against different companies, all unaffiliated with AT&T, about Ballard’s case.

Ballard also cited to a decision by the U.S. Court of Appeals for the Third Circuit issued less than two weeks after the summary judgment decision.  But that decision, the Court concluded, did not change the law and, even if it had changed the law, Ballard’s time to appeal had not run when the Third Circuit issued the decision, so she should have filed a motion for reconsideration with the district court at that time.

“Close Call” For Sanctions

In response to Ballard’s motion, AT&T requested that the Court sanction Ballard because the motion lacked any basis in current law and was frivolous.  The Court denied this request but noted that it was not an “easy decision” since the motion “bordered on frivolous, considering the relevant case law and the circumstances of the litigation.”  That being said, the Court did not want to deter attorneys from making creative or novel arguments.  Thus, the Court declined to sanction Ballard or her attorney but cautioned “counsel to carefully consider future filings.”

Bottom Line

Employers should take comfort that the court will not be influenced by the ebb and flow of public opinion. The #Metoo movement has empowered individuals to come forward to report abuses and misconduct that legitimately should be remedied.  But Courts hearing sexual harassment claims will only look to evidence that directly relates to the employee/employer in that specific case, not general anecdotes about the state of corporations overall and the vicissitudes of public opinion.

For more information on hostile work environment claims and motions for relief from judgment, please contact John C. Petrella, Esq., Chair of the firm’s Employment Litigation Practice Group, at jpetrella@genovaburns.com or Lawrence Bluestone, Esq., Counsel, at lbluestone@genovaburns.com.

Tags: sexual harassmentGenova BurnsEmployment LitigationGenova Burns LLCJohn PetrellaLitigationsexual harrassment#metooLawrence Bluestone