When one employee constantly complains, an employer may be tempted to take a “boy who cried wolf” approach and ignore those protestations. But doing so can lead the complainer to a lawsuit and the employer to court. Such were the circumstances behind Baird v. Gotbaum, a case in which a frustrated employee eventually filed a claim of retaliatory hostile work environment.

Plaintiff’s allegations

The plaintiff was an African-American female who worked as an attorney for a federal agency. She was also the former president of the employees’ union and fre- quently filed Title VII discrimination claims on behalf of herself and others. In this case, the plaintiff claimed that, in retaliation for her Title VII activities, the employer had made her work environment a hostile one. Specifically, the plaintiff alleged that she’d:

• Received rude emails, including a co-worker suggesting she had “litigation induced hallucinations,”
• Endured name-calling, including being called “psychotic” and being verbally assaulted by a co-worker who pounded his fists on a table as he spoke, and
• Dealt with unprofessional behavior, such as being falsely accused of violating her ethical duties and accused of sending a harassing email.

The plaintiff claimed that she reported these incidents to HR, but her employer never investigated or resolved the issues. A trial court dismissed the plaintiff’s claim and she appealed.

Actionable requirements

The appeals court held that a retaliation claim based on a complaint of a hostile work environment was an actionable one. The court further stated that a retaliatory hostile work environment claim could consist of several individual acts that may not be actionable on their own, but can become actionable because of their cumulative effect.

But the acts must be adequately linked to form a coherent hostile environment claim. For example, the acts would have to occur frequently, involve the same type of employment actions and be perpetrated by the same supervisors.

In this case, the appeals court affirmed the trial court’s dismissal of the plaintiff’s claims. The appellate court held that the acts alleged by the plaintiff weren’t adequately linked because they occurred over eight years, involved different people doing different things in different contexts and, otherwise, didn’t have much to do with one another. Further, the court found that the plaintiff had failed to even try to tie the acts together.

A pile of feathers

The plaintiff argued that the common link was that her employer’s HR department had repeatedly failed to investigate or remediate her complaints. But the appeals court held that a retaliatory failure-to-remediate claim wouldn’t be actionable unless the underlying incidents themselves were actionable. The court reasoned that, if the conduct itself wouldn’t dissuade a reasonable person from making or supporting a charge of discrimination, the employer’s failure to investigate that conduct wouldn’t either.

Moreover, the court found that the incidents alleged by the plaintiff wouldn’t themselves constitute a retaliatory hostile work environment because they were immaterial slights, workplace disagreements and personality conflicts — none of which are actionable. Although she alleged a number of incidents, the plaintiff didn’t sway the court, which stated that “a long list of trivial incidents is no more a hostile work environment than a pile of feathers is a crushing weight.”

The plaintiff also argued that the conduct was actionable because it affected her emotional and physical health. But the standard for severity and pervasiveness is objective, not subjective. The question is whether a reasonable person would be dissuaded from making or supporting a charge. Therefore, because the allegations were objectively trivial and immaterial, the fact that she suffered emotional harm was subjective and not controlling or sufficient for her to succeed on her claims.

Important lesson

Although the employer in Baird v. Gotbaum prevailed, there’s still an important lesson to be learned here. Establish solid antiharassment policies and, when complaints arise, fully investigate those allegations. Had the employer in this case investigated the plaintiff’s many complaints, she might have never filed a lawsuit and the organization could have avoided six years of litigation and all of the associated legal costs.  

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