Tuesday, February 28, 2017
Lorraine Kokinchak v. Postmaster General (3d Cir. Feb. 3, 2017)
Even if we were to consider the unexhausted allegations of sexual harassment, the behavior Kokinchak complains about falls short of the sort of conduct courts have said constitutes hostile work environment sexual harassment. See, e.g., Harris, 510 U.S. at 19-20; Meritor, 477 U.S. at 60-61. All of these allegations—those exhausted and unexhausted—consist merely of Brents's presence near Kokinchak. As the Postmaster General points out, Kokinchak “does not allege that Brents ever touched her sexually, was physically threatening, made lewd or inappropriate comments, or even that Brents spoke to her at all.” Appellee Br. at 24. Even considering Brents's status as someone Kokinchak formerly accused of harassment, no instance of Brents's occasional and sporadic presence near Kokinchak could rationally be considered severe, and together they occurred too infrequently—a few occasions spanning years—to be pervasive. While they may have been subjectively unwelcomed by Kokinchak, an objective person could not conclude they altered the terms and conditions of her workplace. Title VII does not create “a general civility code for the American workplace.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). Instead, Title VII prohibits actual “discriminat[ion] because of sex.” Id.
Second, we agree with the District Court that there is no per se rule of hostile work environment when a plaintiff is forced to work in proximity with a former harasser. A plaintiff must prove hostile work environment using the five prong test described above, which includes showing the conduct was “severe or pervasive.” Mandel, 706 F.3d at 167.