A recent decision by the Third Circuit in Kokinchak v. Postmaster General of the United States, (3rd Cir., Feb. 3, 2017), presents some interesting new jurisprudence on sexual harassment "hostile work environment" claims. The plaintiff/employee was a female postal worker who alleged she was subjected to a hostile work environment because she was required to work with a co-employee whom she had previously accused of sexual harassment in 1999, when he allegedly spoke to her and touched her inappropriately. That case resulted in a settlement. She contended that in 2008, the same co-employee harassed her on three occasions, (1) bumping or knocking into her while she was talking to another coworker, touching her arm, purse and lunch bag, (2) she found herself "in the presence" of the alleged harasser when he stationed himself by the door of a room they both occupied and (3) that one day while exiting the restroom she came "face to face" with the man. After filing suit in the District of New Jersey, she further alleged that he parked his car on the same side of the building at which she worked, that he once read the newspaper in her office or work area and that he had a reputation of "generally harassing other female employees."
The District Court granted the Postal Service's Motion to Dismiss, and the employee appealed. The Court first revisited the elements of a "hostile work environment claim," which are: (1) the employee suffered intentional discrimination because of his/her sex (2) the discrimination was severe or pervasive (3) the discrimination detrimentally affected the plaintiff (4) the discrimination would detrimentally affect a reasonable person in like circumstances and (5) the existence of respondeat superior liability.” The Court then focused in on the second element, whether there was "severe or pervasive" discriminatory conduct. The Court noted that in assessing whether conduct is severe or pervasive, "courts consider the totality of the circumstances, including the 'frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with the employee’s work performance[;]' [b]ut in considering the totality of the circumstances, we filter out 'simple teasing, offhand comments, and isolated incidents.'"
The Third Circuit affirmed the District Court's dismissal of the employee's/plaintiff's claims, holding that there is no "per se" rule creating a hostile work environment when an employee is forced to work in proximity with a former harasser. The Court noted that all of the employee's allegations consisted merely of the co-employee's presence near her, without any allegation that he touched her sexually, was physically threatening, made lewd or inappropriate comments, or that he even spoke to her at all.