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A lower court judge erred in dismissing a woman firefighter’s suit alleging she was denied promotion because of her gender, the 2nd U.S. Circuit Court of Appeals has ruled. A three-judge panel in Howley v. Town of Stratford, 99-7966, found that Ellen Howley had presented enough evidence to create a genuine issue of fact as to whether her employers were using pretexts for not promoting her to assistant chief. The Second Circuit also found that the lower court failed to consider the “totality of the circumstances” when it granted summary judgment for the town of Stratford, Conn., on Howley’s claim that she was forced to work in a hostile work environment. Ellen Howley, a firefighter in Stratford since 1982, applied in 1994 to become an assistant chief — a position that required four years of “line officer” experience. She was one of the six candidates for the position, including John J. Cybart, who took an examination and were interviewed by a panel of firefighters from outside Stratford. Although Cybart finished only third out of the six in the rankings, and did not have the requisite four years of line officer experience, he was given the job of assistant chief. Howley, who finished fifth, fell just short of the experience requirement. When Howley sued, the town offered, among other reasons, that Cybart was given credit for time he worked as a fire control officer in the private sector. Chief Judge Alfred V. Covello of the District of Connecticut agreed, finding insufficient evidence that the town’s reasons were pretextual. Howley’s complaint about a hostile work environment was based on the behavior of fellow firefighter William Holdsworth, who was accused of unleashing an obscene tirade at Howley during a firefighters’ benevolent association meeting — a long outburst that included a charge that she had used sexual favors to earn promotion to lieutenant. The town, which suspended Holdsworth for two days for “conduct unbecoming an officer,” argued that Holdsworth’s harassment was not sufficiently severe or pervasive to create a hostile work environment. Judge Covello again agreed, finding that a single incident of harassment was insufficient. He also disregarded Howley’s claim that Holdsworth’s tirade was just part of a larger, ongoing problem. On appeal, the Second Circuit first addressed the failure to promote Howley. Writing for the court, Judge Amalya L. Kearse said she was skeptical about Howley’s ability to eventually prove that the town’s reasons for denying her the promotion given to Cybart were pretextual, but that Howley had nonetheless met her burden and her claim should have survived summary judgment. HOSTILE ENVIRONMENT Turning to the hostile work environment claim, Judge Kearse said the Second Circuit had a different view of the evidence. ” … [C]onsidering all the circumstances,” she said, “Holdsworth’s conduct could reasonably be viewed as having intolerably altered Howley’s work environment, for Holdsworth did not simply make a few offensive comments; nor did he air his views in private; nor were his comments merely obscene without an apparent connection to Howley’s ability to perform her job.” And Howley also presented evidence, Judge Kearse said, that “Holdsworth had perpetrated repeated acts of harassment even after the April 1995 incident in order to undermine further her subordinate’s respect for her….” The court rejected the town’s arguments that all of the alleged incidents between Howley and Holdsworth after the April 1995 meeting did not matter. It then remanded the case for trial on the hostile work environment claim and further proceedings on the failure-to-promote claim. Judges Dennis G. Jacobs and Rosemary S. Pooler joined in the opinion. Karen Lee Torre represented Ms. Howley. Richard J. Buturla of Berchem, Moses & Devlin represented the town of Stratford.

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