Ziskie v. Mineta, No. 06-2060 (4th Cir. Nov. 14, 2008); Alleyne v. American Airlines, No. 07-1386 (2d Cir. Nov. 17, 2008); Washington v. M. Hanna Construction Co., No. 08-20351 (5th Cir. Nov. 14, 2008)

By Paul Mollica

Rough way to start the week: Winning ugly in a Title VII appeal in the Fourth Circuit, a blown limitations period in the Second Circuit, and a flubbed amendment to a Title VII complaint in an unpublished Fifth Circuit order.

Ziskie v. Mineta, No. 06-2060 (4th Cir. Nov. 14, 2008):  A female traffic controller complains that women in the tower suffered a hostile work environment (profanities, crude statements, sexist comments, unfair and imbalanced assignments), and that despite complaints the Department of Transportation ineffectually concluded that there was nothing wrong.  The Fourth Circuit holds that the district court erred granting summary judgment, but the panel draws a map to show how management might win this thing yet.

The district court erred by categorically excluding the affidavits of other women who worked in the same tower:

“When examining all the circumstances of a plaintiff’s workplace environment, evidence about how other employees were treated in that same workplace can be probative of whether the environment was indeed a sexually hostile one, even if the plaintiff did not witness the conduct herself. Hostile conduct directed toward a plaintiff that might of itself be interpreted as isolated or unrelated to gender might look different in light of evidence that a number of women experienced similar treatment.

“Of course, conduct experienced by the plaintiff may well be more probative of a hostile workplace than is conduct the plaintiff did not herself witness. But that goes to the weight evidence should be given, not its relevance or admissibility. A blanket refusal to consider conduct not witnessed by the plaintiff is inconsistent with the Federal Rules of Evidence and Civil Procedure. . . .

“The Rules of Evidence thus adopt a presumption in favor of admitting relevant evidence, and leave it up to the finder of fact to assign it proper weight. This approach is preferable to per se restrictions cordoning off certain types of evidence from district court consideration; such limitations are inconsistent with the proper relationship between appellate and trial courts. Judges and juries do not merely assign weight when finding facts at trial; trial courts perform this task in the first instance when assessing genuineness and materiality on summary judgment. It is not the role of appellate courts to say consider A but not B. That would shrink the universe of relevant evidence from which truth may be distilled.”

So the trial judge erred by categorically excluding the evidence.  But the panel goes on to suggest that the employee’s case may be deficient on other grounds: “even under the evidentiary framework set forth herein, Ziskie will still need to show a triable issue on the second and third elements of a sexually hostile work environment claim: that the alleged harassment was because of her gender, and that the conduct was severe or pervasive enough to alter her working conditions. Our analysis is simply meant to offer guidance on whether or not Ziskie’s claims are sufficient to permit the case to proceed to trial.” 

The panel contends that the record supports another, even more-likely theory — that the men at her worksite resent her personally, and not because of her gender: 

“[V]irtually all of the specific incidents of harassment directed at her occurred after the summer of 2002, when she abused her sick leave in order to retain her old part-time schedule when she was supposed to be working full-time. So far as the record shows, Ziskie’s co-workers were working full weeks while she was enjoying four-day weekends. For reasons unrelated to sex, this behavior was unlikely to endear Ziskie to her colleagues.”


“Co-workers might also not take warmly to the fact that Ziskie was meticulously recording in her diary every conceivably offensive comment they made and every instance in which they did not help her as much as she thought was appropriate. Her fellow workers might well resent her openly examining the log files to determine when they arrived at and left work. The record indicates that Ziskie’s co-workers believed that she was ‘keeping book’ on them, as Ziskie’s supervisor stated in his deposition. Indeed, some of the harassment of which Ziskie complains directly relates not to gender but to the fact that Ziskie’s colleagues thought that she was gratuitously tracking them – for example, she points to the fact that one colleague on three separate occasions told her not to look at the log files. While other workplace rules or regulations may or may not protect Ziskie’s conduct, these do not relieve her of the need to show that her unhappy experience at work was because of her sex.”

“The possibility that Ziskie’s treatment was not related to her gender but rather to co-workers’ specific personal issues with her is underscored by the fact that most of the comments and behavior of which Ziskie complains were not about her sex. Ziskie’s complaints include that she was called a ‘fucking moron,’ that her co-workers failed to cooperate with her flight control procedures, and that a co-worker enjoyed passing gas in her presence.”

Gee, do you suppose the panel meant to write the agency’s closing argument here? The panel also suggests that the events described may not be objectively severe enough to support liability, in the absence of physical touching, sexual propositioning or graphic sexual talk.  Finally, the panel affirms summary judgment on a companion Title VII retaliation claim.

Alleyne v. American Airlines, No. 07-1386 (2d Cir. Nov. 17, 2008):  On a Title VII race claim, the employee — a service clerk — accepted 323 hours of special assignment (Management Personnel Replacement) in 2002, which caused him to forfeit all nine years of his occupational seniority under a collective bargaining agreement. The following year, in June 2003, he was laid off, and the forfeiture of seniority assured that he would not be recalled.  So he filed a charge in 2004 challenging the original forfeiture of seniority.  The district court and the Second Circuit (in a per curiam opinion) hold that the charge was due no later than 300 days after losing the seniority, not after the date of the lay-off.  The employee contended that he did not realize what the effect of the forfeiture would be until the layoff occurred.  But the Second Circuit responds that “Alleyne does not, and reasonably cannot, downplay the significance of the loss of approximately nine years of seniority. . . . Thus, in order to have notice of his claim under Title VII, Alleyne need not have forecast every problem attending his loss of seniority.”

Washington v. M. Hanna Construction Co., No. 08-20351 (5th Cir. Nov. 14, 2008):  The only thing notable in this otherwise bleak, pro se appeal is that the employee submitted both a complaint and an amended complaint.  The latter did not plead all of the facts in the former, but when the employee found himself shorthanded in the pleading of his Title VII retaliation on a motion to dismiss, he attempted to revert to the original complaint.  No sale, says the Fifth Circuit.  “In his brief, Plaintiff cites factual allegations in his original pleading to support the Title VII retaliation claim asserted in his amended complaint. Those allegations have no legal effect in light of his filing an amended complaint that neither refers to nor incorporates his original pleading.”