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A worker who said he was taunted with constant jokes from co-workers after he complained that a woman had sexually harassed him — and that his bosses did nothing to stop the teasing — may have a valid claim that he was subjected to a “hostile environment,” a federal appeals court has ruled. But the unanimous three-judge panel stressed in Weston v. Commonwealth of Pennsylvania that it revived the claim only on the thinnest of reeds since the allegations had satisfied the requirements of “notice pleading.” Judge Richard L. Nygaard of the 3rd U.S. Circuit Court of Appeals found that, ordinarily, “the mere utterance of an epithet, joke, or inappropriate taunt that may cause offense does not sufficiently affect the conditions of employment to implicate Title VII liability.” Michael Weston’s lawsuit, he said, included no details about the content of the offensive comments, jokes and jibes. Instead, the suit alleged only that the jokes were in retaliation for Weston’s complaint that he had been sexually harassed by Dolores Merithew. Nygaard noted that Weston didn’t complain that he was targeted because of his gender and that he made no allegation that the taunting had altered the conditions of his employment or created an abusive environment. But at oral argument, Weston’s lawyer, Jeffrey Campolongo, argued that the allegations were nonetheless sufficient to survive a motion to dismiss based on the liberal notice pleading requirements in federal court. On that point, Nygaard agreed. “Generally, in federal civil cases, a claimant does not have to set out in detail the facts upon which a claim is based, but must merely provide a statement sufficient to put the opposing party on notice of the claim,” Nygaard wrote in an opinion joined by Chief U.S. Circuit Judge Edward R. Becker and U.S. Circuit Judge Thomas L. Ambro. As a result, Nygaard said, Senior U.S. District Judge James McGirr Kelly of the Eastern District of Pennsylvania erred in dismissing Weston’s claim about his co-workers’ taunts since he had stated a valid claim for hostile work environment that gave adequate notice to the defense. “Although Weston’s allegations are not strong, they are nonetheless sufficient to meet our lenient standards of notice pleading,” Nygaard wrote. But Nygaard found that Kelly properly tossed out Weston’s claim that two incidents in which Merithew touched him had created a hostile environment and that the discipline she received — a written reprimand that told her she had violated the “zero tolerance” policy — was not enough of a response. Kelly was also correct in throwing out Weston’s claim that he suffered retaliation, Nygaard said, since Weston couldn’t prove that two suspensions without pay were related to his sexual harassment complaints more than a year before. FACTS Weston and Merithew both worked as guards at Graterford Prison. In February 1997, Weston claimed that Merithew began caressing his back and that he told her to stop and “never to touch him again.” But just three days later, on Valentine’s Day, the suit says Weston tore a hole in his trousers and that Merithew approached him from behind and put her finger in the hole, making “direct contact with the flesh of Mr. Weston’s buttocks.” Weston complained to prison officials, but Merithew said that she had simply been trying to remove a loose thread from Weston’s pants. In a written reprimand, Merithew was told: “It may not have been your intention to harass Mr. Weston, however, the incident was perceived as sexual harassment by Mr. Weston. The purpose of this reprimand is to make you aware of the problem, the problem being your touching an employee and the employee taking exception to being touched.” In his suit, Weston complained that Merithew was never suspended or disciplined for the incident. He alleged that the Pennsylvania Department of Corrections was liable for Merithew’s harassment because it failed to prevent her from assaulting him. “This argument has no merit,” Nygaard wrote. “Our rule envisions prompt remedial action when the hostile environment is discovered. In other words, when the source of the alleged harassment is a co-worker, a plaintiff must demonstrate that the employer failed to provide a reasonable avenue for complaint, or, if the employer was aware of the alleged harassment, that it failed to take appropriate remedial action.” Since Weston admits that the harassment stopped after Merithew was reprimanded, Nygaard said, the PDOC’s prompt reaction shielded it from Title VII liability. JOKES AND JIBES Weston also alleged that after he complained, his co-workers and even inmates subjected him to constant jokes and jibes that created a hostile work environment and that prison officials did nothing to stop the taunts. Nygaard found that the claim presented two sets of legal questions since the jokes and jibes came from both co-workers and inmates. In Slayton v. Ohio Dept. of Youth Services, Nygaard said, the 6th Circuit found that conduct by inmates cannot create a hostile work environment because “prisoners, by definition, have breached prevailing societal norms in fundamentally corrosive ways.” The Slayton court held that “by choosing to work in a prison, corrections personnel have acknowledged and accepted the probability that they will face inappropriate and socially deviant behavior.” Nonetheless, Nygaard found that Weston may have a valid claim if he can show that the inmates’ conduct was encouraged or instigated by prison workers. “Weston should have an opportunity to amend his complaint so as to make allegations, if possible, as to prison officials’ instigation and/or knowledge of these events. We believe the district court erred in not providing Weston an opportunity to amend his complaint in this fashion,” Nygaard wrote. Similarly, Nygaard found that Weston should have the chance to flesh out his claim that the jokes from co-workers created a hostile environment. “Although we question the merits of Weston’s claim for hostile work environment due to the comments, jokes and jibes of his co-workers and managers, he has satisfied the extremely lenient requirement of notice pleading,” Nygaard wrote. But Nygaard also noted that “at this stage of the litigation, Weston does not present the most compelling of Title VII hostile work environment claims. Were this an appeal from a grant of summary judgment, we would be hard-pressed to reverse a disposition in PDOC’s favor.” But since Weston was appealing a dismissal under Rule 12(b)(6), Nygaard said, “although we consider the question to be an extremely close one, we conclude that Weston’s allegations of a hostile work environment created by the remarks of co-workers and managers suffices to state a Title VII claim.”

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