Court Must Consider Uncorroborated Evidence in Hostile Workplace Suit

August 25, 2010 ( – A federal appellate court has determined that a district court improperly discounted uncorroborated testimony by a woman who claims she was subjected to a hostile work environment at her former employer.

However, the district court was correct in finding that a single act can create a hostile environment if it is severe enough, the 7th U.S. Circuit Court of Appeals said.  

The appellate court said the district court improperly discounted as uncorroborated Cynthia Berry’s assertion that her supervisor made dismissive comments such as, “Women aren’t the only ones who can file sexual harassment,” reiterating that Berry did not need to provide corroboration of her firsthand observation of his statement. Her version of the supervisor’s words and actions is based on her own personal encounters with him and therefore can be used to create issues of material fact, the court said.  

According to the opinion, the appellate court “long ago buried—or at least tried to bury—the misconception that uncorroborated testimony from the non-movant cannot prevent summary judgment because it is “self-serving.”  

However, the court found Berry’s claim as it relates to her supervisor must fail because she did not show that his comments were severe or pervasive enough to create a hostile environment. She did not offer evidence that he made similar comments frequently or on any other occasions; that she felt physically threatened or humiliated by his comments; or that the comments affected her performance.  

The appellate court moved forward Berry’s hostile work environment claim against a coworker, noting that a single act can create a hostile environment if it is severe enough, and instances of uninvited physical contact with intimate parts of the body are among the most severe types of sexual harassment. The court said the coworkers actions, as alleged by Berry, qualify undeniably as unwelcome sexual conduct that established a hostile environment.  

Finally, the 7th Circuit found the district court erred when it concluded that Berry had not offered evidence of the Chicago Transit Authority’s liability for the coworker’s actions, once again mistakenly disregarding her testimony because it was uncorroborated.  

The district court reasoned that Berry’s supervisor was not negligent because he promptly started an investigation into the incident, and he advised Berry and the coworker to stay away from each other to reduce tension. But, Berry contends that, far from facilitating a genuine investigation into the co-worker’s conduct, her supervisor sabotaged the investigation and showed eagerness to disregard the truth, calling her “a pain in the butt” and predicting she would lose her job if she filed charges when she complained to him. He also told Berry he didn’t care what had happed and would do “whatever it takes to protect CTA.”   

Though uncorroborated, the appellate court said Berry’s testimony would allow a reasonable fact-finder to conclude the supervisor maliciously thwarted any legitimate investigation, and that the CTA is therefore negligent or worse in responding to her report of harassment.   

The court remanded for further proceedings Berry’s claim of a hostile work environment as it relates to her coworker’s actions and the CTA’s liability. The 7th Circuit affirmed the lower court’s summary judgment in favor of CTA on discrimination and retaliation claims.  

During a break, Berry claimed her coworker picked her up, rubbed himself against her, and pushed her into a fence. She said her complaint about the incident to her supervisor was met with hostility. In addition, because of lower-back pain and headaches that she says were caused by her coworker’s actions, Berry sought injured-on-duty status, which would have entitled her to workers’ compensation, but was instead placed on sick leave, which she maintains was retaliation.  

The 7th Circuit opinion is here.