Hostile work environment: Context is key

By Kristin Simpsen

A registered nurse who worked as a public employee at a city hospital filed suit against the city, alleging a hostile work environment in violation of Title VII. She also alleged that the city retaliated against her in violation of Section 1983 when it removed her from her job assignment after she exercised her First Amendment rights by filing a petition.

The district court held that the employee’s lawsuit wasn’t a matter of public concern and found for the employer on the Section 1983 claim. Additionally, the court dismissed the Title VII claim in the employer’s favor, holding that the employee didn’t suffer sexual harassment or a hostile working environment because the alleged conduct wasn’t sufficiently pervasive or severe to qualify as actionable conduct. The Tenth Circuit agreed, affirming the lower court’s decision.


The employee had worked at the city hospital for several years. In 2007, she was placed on a special team to perform all heart surgeries at the facility. While she was on the special team, she alleged that one of the surgeons twice flicked her head with his finger. Another time, in the operating room, the same surgeon threw pericardium tissue in her direction. The tissue landed on her leg, and she wasn’t wearing protective equipment.

A couple of days later, the employee reported the incident to her supervisor, who reported it to HR. The HR manager interviewed the surgeon and other employees who were present during the incident. Following the interviews, the special team participated in a team-building program led by an outside professional. After the training, the employee continued to work with the surgeon without incident.

Three months later, the employee submitted a notice of claim to her employer, stating she had suffered damages as a result of the pericardium incident. The employer responded by transferring her from the special team to the main operating room. The employee then filed suit against the employer in federal court, alleging a Section 1983 claim and a Title VII hostile work environment claim.

The employer asked the court to dismiss the Title VII claim in its favor without a trial, and the court complied, observing that the context of the pericardium incident showed that the employee’s working conditions weren’t altered because the incident occurred in a surgical context, where employees routinely encounter human tissue, blood, and other bodily fluids. Thus, a reasonable worker in the same context would be less likely than a worker in an unrelated context to find the contact with human tissue threatening. Moreover, corrective actions were taken after the incident that allowed the employee and surgeon to continue working together without incident. Morris v. City of Colorado Springs.

Lessons learned

When an employee files a suit against a public employer alleging that it violated her First Amendment rights, the public employer is protected. The mere act of filing a lawsuit about an internal personal dispute between an employee and employer is not a matter of public concern. That’s true even if the media reports extensively on the story.

Additionally, you should remember that Title VII is not a civility code. While you must take necessary steps to prevent discrimination and a hostile work environment from occurring, conduct that is simply juvenile or unprofessional is not actionable. To be actionable, the environment must be objectively and subjectively hostile or abusive. Courts will consider the objective severity of the harassment from the perspective of a “reasonable person” in the employee’s position and the circumstances surrounding the conduct. If an employee complains of inappropriate conduct, the best practice is to thoroughly investigate the matter and make sure she’s comfortable with working conditions going forward.