Glass Houses: Hostile Work Environment Lawsuit Dismissed Due to Unprofessional Conduct by Employee | Genoa Burns LLC – Advice Eating

On April 19, 2022, in Bouziotis v. Iron Bar, LLC, the New Jersey Appellate Division upheld a trial court’s dismissal of a former bartender’s hostile work environment and allegations of gender discrimination, in part on the basis that the employee participated in the “derogatory and loutish language” behavior that pervades the atmosphere of Iron Bar” just like everyone else, regardless of gender. Because the former employee could not prove that the alleged misconduct “but for [her] Gender,” the Appeals Division upheld the summary judgment of the trial court in favor of the employer.

facts

Lauren Bouziotis worked as a part-time bartender for Iron Bar from September 2016 until May 2018, when she resigned. While at Iron Bar, Bouziotis reported to Darrell Remlinger – co-owner of Iron Bar and responsible for the day-to-day operations of the bar. Bouziotis claimed, Remlinger would give their vulgar nicknames, centered on the size of their butts, that he would write them down on their weekly schedule and use them on their paycheck envelopes. Bouziotis also claimed she asked to work Thursday night shifts, but Remlinger turned down that request and gave those shifts to male bartenders instead. Bouziotis claimed she complained for over a year, but Remlinger never stopped. Bouziotis claimed that the harassment eventually became too much for her, forcing her to quit. Remarkably, she didn’t mention harassment in her resignation letter, yet she gave two weeks’ notice.

In response to Bouziotis’ claims, Iron Bar presented a barrage of evidence that she behaved just as, if not worse, at work. Five employees submitted certificates in support of Iron Bar and Remlinger, testifying that Bouziotis “routinely made obnoxious comments and used vulgar language at work” and that Bouziotis’ “conduct while working at the Iron Bar included swearing, telling sexual jokes, involved inappropriate dancing and posing in provocative images with colleagues.” They even testified that “Remlinger [was] often the goal of [Bouziotis’s] own inappropriate attribution, [and that he] considered [Bouziotis’s] Comments may be in jest.” Bouziotis offered no rebuttal or explanation for her inappropriate behavior.

In addition, Iron Bar presented evidence that female bartenders regularly worked Thursday night shifts and that Friday and Saturday night shifts, Bouziotis’ typical shift assignments, were the busiest and most desirable nights among employees. Iron Bar and its staff also attested that they “routinely contact each other by . . . alternative names instead of their proper names” and Bouziotis even admitted that “Remlinger used the alternative names when addressing both men and women who worked at Iron Bar” and that his “use of the alternative names was not gender specific”.

Bouziotis alleged harassment, hostile work environment, gender discrimination and retaliation under the New Jersey Anti-Discrimination Act (NJLAD).

decision of the court case

The trial court granted Iron Bar’s motion for summary judgment, noting that “[Bouziotis] admitted participating in certain rude behavior at Iron Bar” and “did not provide affidavits or certifications from Iron Bar employees that contradicted the certifications of five Iron Bar employees who were witnesses and descriptions [Bouziotis’s] own unacceptable conduct and vulgar abuse while working at Iron Bar.” The trial court found that given the atmosphere at Iron Bar, the alleged misconduct was little more than offensive language, meaning there were “no genuinely controversial issues [material] fact” in relation to [Bouziotis’s] Expectations . . . justified[ing] [Defendants] to summary judgment as a matter of law.”

Decision of the Appeals Division

In its review, the appeals division agreed with the trial court that Bouziotis “failed to present evidence upon which a jury could reasonably have concluded that the defendants violated the LAD.” The appeals division found that the trial court “appropriately assessed the entirety of the relevant circumstances involving[d] investigate[ing] . . . (1) the incidence of any discriminatory behavior; (2) its heaviness; (3) whether it is a physical threat or humiliation or a mere offensive statement; and (4) whether it unduly impairs an employee’s job performance.” The Appeals Division determined that even in its own assessment, the misconduct alleged by Bouziotis did not amount to the level of criminal harassment or discrimination under the NJLAD.

In doing so, the Appeals Division dismissed the notion that alleged harassment or wrongdoing would not have taken place “without” Bouziotis’ gender. The Appellate Division, which essentially viewed Remlinger as an equal rights violator, found it compelling that “Remlinger used the alternative names when addressing both men and women who worked at Iron Bar” and that “Remlinger’s use of the alternative names was gender-neutral.” In addition, the Appeals Division recognized Iron Bar’s evidence that women routinely worked Thursdays and that giving Bouziotis cheaper shifts was unfeasible.

Finally, the Appeals Department reiterated what many forget – that “[e]Employees are not entitled to a perfect workplace, free from harassment and colleagues [they find] uncomfortable.” In considering the “all of the relevant circumstances,” the Appeals Division acknowledged that “derogatory language and rude behavior pervade[ed] Iron Bar vibe” and that Bouziotis “was involved in many of the offending behaviors and spoke much of the same language,” as she then challenged. In this regard, the Appellate Division saw nothing in Remlinger’s abuse or the conduct of anyone in this matter other than “[u]nprofessional behavior . . . [which,] although inappropriate, differs from the discriminatory acts that can be challenged under the LAD.”

bottom line

Bouziotis’ case is a rare victory for employers that comes with a stark reminder that a misconduct complaint must still be based on a protected characteristic in order to be prosecuted. While employers should be aware that it is dangerous and risky to allow such “rude” behavior to permeate the workplace in the first place, they should take comfort in knowing that the courts will consider all of the circumstances before making a judgment fell.

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