Is offensive conduct or statements unknown to a hostile work environment plaintiff admissible? The First Circuit answered yes in its recent decision, Tuli v. Brigham & Women's Hospital, No 08-2026, 09-1597, 09-1603, 09-1731 (August 29, 2011), which was discussed in a previous post, Accumulated Effect of Incidents of Humiliating, Offensive Comments Directed at Women and Work-Sabotaging Pranks, Taken Together, Can Constitute a Hostile Work Environment, First Circuit Rules.
The plaintiff, Dr. Sagun Tuli, a female neurosurgeon, alleged a hostile work environment based on sex and proved it, as the earlier post discussed, with ample evidence. On appeal, in addition to other alleged errors, the hospital also complained that evidence of comments by Dr. Tuli's two principal antagonists, a Dr. Arthur Kim and a Dr. Dong Kim, "as well as testimony from Eileen Hardy about a penis statue and cookie jar with women's underpants in Day's office and sexual drawings Day downloaded onto her Palm Pilot" were inadmissible.
The First Circuit rejected the hospital's argument that the evidence was inadmissible because Tuli had not been aware of the conduct and/or statements, explaining as follows:
If certain of the offensive conduct was unknown to Tuli at the time, it remained relevant for purposes of showing notice to the Hospital and toleration of a general climate of offensive remarks and displays. See Cummings v. Standard Register Co., 265 F.3d 56, 63-64 (1st Cir. 2001). Those of Kim's statements made off-site at a going-away party remained relevant to the hostile work environment claim, e.g., Parrish v. Sollecito, 249 F. Supp. 2d 342, 350-52 (S.D.N.Y. 2003), and Tuli reported Kim's conduct to [the hospital's medical director].
Robert L. Abell
www.RobertAbellLaw.com
