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A work environment cannot be labeled “hostile” if the plaintiff can point to only four incidents over an 18-month period in which her assistant manager made unwanted sexual advances, a federal judge has ruled. In his 12-page opinion in Saidu-Kamara v. Parkway Corp., U.S. District Judge J. Curtis Joyner found that although the alleged behavior of the parking lot assistant manager was “loathsome and inappropriate,” the plaintiff, a parking lot attendant, “has at best demonstrated sporadic and isolated incidents of harassment.” To prove a hostile environment claim, Joyner said, “the discrimination complained of must be pervasive and severe enough to alter the conditions of the victim’s employment and create an abusive working environment.” Victoria Saidu-Kamara’s claim failed, Joyner found, because the four specific incidents she complained of occurred over nearly a year and a half and only one included a claim of unwelcome touching that was arguably severe enough. And while the plaintiff also complained of numerous other derogatory and sexual comments during her deposition, Joyner found that they didn’t add enough to the total picture to make a valid claim. “Such comments, including the few repeated requests for dates, may have been annoying and undoubtedly unwelcome, but they cannot be characterized as patently offensive or severe,” Joyner wrote. But Joyner refused to dismiss Saidu-Kamara’s claim that she was discriminated against on the basis of sex when she was fired for sleeping on the job while men who committed similar infractions were not fired. Defense attorneys Kristine Grady Derewicz and Barbara Rittinger Rigo of Littler Mendelson argued that Saidu-Kamara’s sex discrimination claim should also fail because the two men she compares herself to are not fair “comparators.” One of the men was a union employee whose discipline is governed by a collective bargaining agreement, they said, while Saidu-Kamara was an at-will employee. And the other man’s second warning for sleeping on the job came two years after his first warning, they said, while Saidu-Kamara’s second infraction occurred within one week of her first warning. Joyner found that the 3rd U.S. Circuit Court of Appeals has never ruled on the question of whether a union employee can be compared to a non-union employee. But the question was easily dodged, Joyner found, because the second man qualifies as a true comparator since he had racked up several more warnings — including two for sleeping — before he was fired. According to the suit, Saidu-Kamara worked as an attendant at the Parkway Garage in Philadelphia from August 1994 to February 1996. Early on, she claims, assistant manager Emmanuel Oluwole began to sexually harass her. Within her first few months on the job, she claims, Oluwole grabbed her, told her she looked “fresh,” and asked her to spend the evening with him. Around Christmas of that year, she claims, Oluwole told her that he liked her eyes and that he could provide money for her to take care of her children if she would go out with him. In the spring of 1995, she complained of an incident in which Oluwole allegedly pulled a half-full bottle of wine out of his pants and told her that she would get a full bottle if she joined him for dinner and went to a hotel with him. Finally, around Christmas 1995, she complained that Oluwole patted her on the behind and told her that she had written a good report. Saidu-Kamara claims that she repeatedly complained of Oluwole’s advances to manager Lawrence Sesay, but that he did nothing to stop the harassment. Defense lawyers argued that the allegations did not add up to a hostile environment because the incidents “occurred too sporadically” and were not severe enough. They cited Senior U.S. District Judge Thomas N. O’Neill Jr.’s October 2000 opinion in Bonora v. UGI Utilities Inc., which held that 10 alleged incidents over a two-year period was not enough to make out a hostile environment claim. But plaintiff’s attorney Scott M. Pollins argued that the Equal Employment Opportunity Commission considers even one incident in which a plaintiff’s breast is touched to be potentially severe enough to make out a hostile environment claim. Saidu-Kamara, he said, easily satisfied the test by alleging two incidents in which her breast was touched and one in which Oluwole touched her buttocks, along with repeated incidents when he propositioned her to join him on dates or for sex. But Joyner found that Saidu-Kamara had actually alleged only one incident of unwanted touching in her complaint. As a result, Joyner said he agreed with the defense argument that the alleged harassment was not “pervasive and regular.” “Title VII does not extend to all workplace difficulties, even where the conduct at issue may be crass and unwarranted,” Joyner wrote. “Allegations of isolated or single incidents of harassment do not constitute a cognizable hostile work environment claim.”

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