By Erica Shelley Nelson and Brennen Johnson
In Melendez v. Town of Bay Harbor Islands, a U.S. District Court dismissed a female police officer’s lawsuit for sex-based discrimination against the Police Department of Bay Harbor Islands, Florida. The Officer brought the lawsuit claiming that the Police Department engaged in sex-based discrimination by failing to provide suitable changing areas for female employees. In a summary judgment proceeding, the Court explained that the Officer failed to allege facts sufficient to show that any actions taken by the Police Department were motivated by sex-based discrimination. Although the Officer failed on her sex-based discrimination claim, the Court explained that the Police Department might still be liable for creating a hostile work environment towards women.
Officer Melendez joined the Police Department in March of 2003. Nine years later, in April of 2012, she informed her superiors that she was pregnant and requested that she be placed on light duty. Her request was denied and she was forced to take a leave of absence pursuant to the Family and Medical Leave Act. Throughout the Officer’s employment, the only changing area that the Police Department provided to women was a former men’s lavatory covered with a shower curtain. The Officer claimed that as a result, a male colleague had walked in on her multiple times and she “constantly had a fear that she would be walked in on at any moment by a male co-worker.” She also claimed that a particular superior regularly made sexual advances toward her and created a hostile work environment.
On these facts, the Officer brought a lawsuit against the town of Bay Harbor, claiming that the Police Department had discriminated against her based on her gender and had created a hostile work environment towards women. The Police Department argued that it could not have discriminated against the Officer because none of the facts that she alleged indicated an action that was taken against her.
The Court explained that in order to be successful in her lawsuit, the Officer would need to show that (1) she was a member of a protected class, (2) she was qualified for her position, (3) she suffered an adverse employment action, and (4) she was treated less favorably than a similarly situated person outside her protected class. Even though the Officer was a member of a protected class as a woman, was qualified to be an officer, and was treated less favorably than men in terms of available changing facilities, the Court determined that the Officer hadn’t alleged any facts indicating that the Police Department had taken an adverse employment action against her.
The Court explained this decision in further detail:
“An adverse employment action is a serious and material change in the terms, conditions or privileges of employment. [It] constitutes significant change in employment such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision causing a significant change in benefits… Melendez bases her claim for sex discrimination on the Police Department’s willful failure to provide suitable changing areas for female employees—a condition that [she] presumably operated under since she joined the department over a decade ago… [She] does not claim the terms and conditions of her employment were altered—in fact, she claims that they were not changed at all… Melendez has not alleged an adverse action, but a continued frustration.”
Employing this line of reasoning, the Court determined that the Police Department could not have discriminated against the Officer based on her gender, because no facts indicated that they had taken an adverse employment action against the female officer. Accordingly, the Court determined that the Officer’s claim for sex-based discrimination should be dismissed. However, the Court also stated that the Officer still might have a legal claim against the Police Department for creating a hostile work environment. It noted that the success of that claim would depend on how a jury weighed the truthfulness of the facts behind her allegations when presented at trial.
I am not convinced the Court made the right decision here. An “adverse employment action” may include hostile work environment harassment. As a result, her claim of sexual harassment against her superior, that the Court concluded had merit and should be litigated and presented to a jury, could have risen to the level of an “adverse employment action” under the law. Being forced to change in a room with a curtain is also more than just an inconvenience, and gives rise to real privacy concerns, especially in light of the fact that she pled facts to show she was being sexually harassed by a male superior. The standard on a motion to dismiss is not high. The Officer was not required to prove her case; she just had to show that the facts, if accepted as true, are enough to show that her sex discrimination claim is “plausible.” I believe she met that low standard, and another court would have decided this case quite differently.
