The Bitch Is Back: When a Supervisor Repeatedly & Angrily Calls An Employee a “Bitch” to Her Face in Front of Co-Workers, Is it Sexual Harassment?

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Kimberly Passananti was the deputy director of the DRC from 2002 until 2007. For several years, her supervisor was DRC director John Sullivan. After losing her job in 2007, Passananti sued, claiming that Sullivan subjected her to sexual harassment and that she was fired because of her sex. A jury agreed with her and awarded her a total of $4.1 million in damages: $4 million in compensatory damages against Cook County, and $70,000 in compensatory damages and $30,000 in punitive damages against Sullivan. The district court granted defendants’ motion for judgment as a matter of law and entered judgment for the defendants. Passanti v. Cook County, 2012 WL 2948524 (7th Cir. 2012).

Ok, so sometimes jurors go too far and award damages to an undeserving plaintiff, which is why we have Federal Rule of Civil Procedure 50, which allows the judge to grant the defendant judgment as a matter of law when a reasonable jury would not have had a legally sufficient evidentiary basis to find for the party on an issue. So, what was the evidentiary basis in Passanti? Well, according to Passananti (whose allegations District Judge John Darrah had to take as true under Rule 50),

• Sullivan repeatedly and angrily called Passananti a “bitch” to her face and in front of their co-workers;

•Specifically, he called her a “bitch” on “numerous occasions,” over a “progressive period of time;”

•Sometimes he called her a “stupid bitch;” and

•In August 2005, Sullivan called Passananti into his office and told her that he was going to open an investigation into “a violation.” When Passananti told him that there was no violation, he started screaming at her and told her to “shut the ‘F’ up, you lying ‘B’.”

And these allegations didn’t come solely from Passananti; instead, a DRC investigator heard Sullivan say to Passananti, “what is that fucking bitch doing in here this time?”

So, why did Judge John Darrah grant the defendants judgment as a latter of law? According to the judge,

Plaintiff proved that Sullivan made vulgar, rude, and ungentlemanly statements. She proved there were incidents in which he called her names and made it difficult for her to work. However, the evidence is insufficient for a rational jury to conclude that Sullivan’s sometimes-vulgar conduct was directed at Plaintiff because she is a woman and that it was so severe or pervasive that it rendered her work environment hostile as a matter of law.

I strongly disagree with Judge Darrah and strongly object to him hearing any subsequent sexual harassment cases. Thankfully, the Seventh Circuit agrees with me, at least with regard to my first point.

In Passanti, the Seventh Circuit disagreed with Judge Darrah’s conclusion, finding that

We recognize that the use of the word “bitch” has become all too common in American society, and its use has permeated many workplaces. Common use, however, has not neutralized the word as a matter of law. The Eleventh Circuit sitting en banc issued a stern opinion on this issue, holding unequivocally that, “when a co-worker calls a female employee a ‘bitch,’ the word is gender-derogatory.” Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 810 (11th Cir.2010) (en banc) (noting that both the original definition of the term—”the female of the dog”—and its secondary meanings—”a lewd or immoral woman” or a “malicious, spiteful, and domineering woman”—are gender-specific), citing Webster’s Third New International Dictionary 222 (2002). Additional evidence that “bitch” is “sex based” for purposes of establishing gender-based harassment is not necessary.

There’s a lot more to the Seventh Circuit’s opinion, but that’s the gist of it. And what that means is that it was absolutely preposterous for Judge Darrah to grant the defendants judgment as a matter of law. As noted by the court,

we could not say as a matter of law in this case that the impact of Sullivan’s language was gender-neutral. The jury heard testimony that Sullivan used the word “bitch” regularly in reference to the plaintiff. He did not use the word in jest, but instead used it together with his threats against Passananti’s employment….

The district court erred in removing this determination from the jury’s hands and imposing its own finding. It was up to the jury to decide about context and credibility, such as what Sullivan’s motivations were when he repeatedly targeted the plaintiff with vulgar, gender-based epithets, targeted her for discipline, and made and then followed through on his threat to accuse her of work-related sexual misconduct. The jury was instructed properly to assess this evidence and to determine whether it believed that Sullivan conducted his campaign against the plaintiff because of her gender. So instructed, the jury determined that Sullivan’s conduct was sex-based and was not neutral. Ample evidence in the record supports its judgment. The district court’s rationale for overturning the jury’s verdict on this basis was error.

-Colin Miller

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