Glass Houses: Hostile Work Environment Claim Dismissed Due to Employee’s Own Unprofessional Conduct

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 gender discrimination claims partly on the grounds that employee partook in the “pejorative language and boorish conduct pervading Iron Bar’s atmosphere,” just as much as anyone else, regardless of gender. Because the former employee could not show that the alleged misconduct occurred “but for [her] gender,” the Appellate Division upheld the trial court’s grant of summary judgment 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. During her time at Iron Bar, Bouziotis reported to Darrell Remlinger – part-owner of Iron Bar and the person responsible for the bar’s daily operations. Bouziotis alleged that Remlinger would call her vulgar nick names focused on the size of her backside, that he would write it on the weekly schedule, and use it on the envelopes containing her paychecks. Bouziotis also claimed that she asked to work Thursday night shifts, but Remlinger denied that request, giving those shifts to male bartenders instead. Bouziotis alleged that she complained for over a year, but Remlinger never stopped. Bouziotis claimed that the harassment eventually became too much for her handle, forcing her to quit. Notably, she did not mention any harassment in her resignation letter, and still gave two weeks’ notice.

In response to Bouziotis’s claims, Iron Bar put forth a barrage of evidence that she engaged in the same, if not worse, conduct while at work. Five employees submitted certifications in support of Iron Bar and Remlinger, testifying that Bouziotis “routinely made vile comments and used vulgar language at work” and that Bouziotis’s “behaviors while working at the Iron Bar included cursing, telling sexual jokes, dancing inappropriately, and posing in provocative pictures with co-employees.” They even testified that “Remlinger [was] often the target of [Bouziotis’s] own inappropriate name-calling, [and that he] considered [Bouziotis’s] comments to be in jest.” Bouziotis offered no rebuttal and no explanation for her inappropriate conduct.

Further, Iron Bar proffered evidence that female bartenders regularly worked Thursday night shifts, and that Friday and Saturday night shifts, which were Bouziotis’s typical shift assignments, were the busiest and most coveted nights among employees. Iron Bar, and its employees, also certified that they “routinely referred to each other by . . . alternate names rather than their proper names” and Bouziotis even admitted that “Remlinger used the alternate names when addressing both men and women working at Iron Bar” and that his “use of the alternate names was not gender specific.”

Bouziotis alleged claims of harassment, hostile work environment, gender discrimination, and retaliation under the New Jersey Law Against Discrimination (NJLAD).

Trial Court Decision

The trial court granted Iron Bar’s motion for summary judgment, finding that “[Bouziotis] admitted participating in certain uncouth behaviors at Iron Bar” and did not “submit affidavits or certifications from Iron Bar employees refuting the certifications of five Iron Bar employees who witnessed and described [Bouziotis’s] own unacceptable conduct and vulgar name-calling while working at Iron Bar.” The trial court found that given Iron Bar’s atmosphere, the alleged misconduct amounted to little more than mere offensive language, meaning there were “no genuinely disputed issues of [material] fact” with respect to [Bouziotis’s] claims . . . entitl[ing] [Defendants] to summary judgment as a matter of law.”

Appellate Division Decision

In its review, the Appellate Division agreed with the trial court that Bouziotis “failed to present evidence upon which a jury could reasonably conclude defendants violated the LAD.” The Appellate Division held that the trial court accurately assessed “the totality of the relevant circumstances, which involve[d] examin[ing] . . . (1) the frequency of all the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or a mere offensive utterance; and (4) whether it unreasonably interferes with an employee’s work performance.” The Appellate Division held that even in its own evaluation, the misconduct complained of by Bouziotis did not rise to the level of actionable harassment or discrimination under the NJLAD.

In so holding, the Appellate Division rejected the idea that any alleged harassment or misconduct would not have occurred “but for” Bouziotis’s gender. Essentially finding Remlinger to be an equal opportunity offender, the Appellate Division found persuasive that “Remlinger used the alternate names when addressing both men and women working at Iron Bar” and that “Remlinger’s use of the alternate names was gender neutral.” Further, the Appellate Division credited Iron Bar’s evidence that females routinely worked Thursdays, and that giving Bouziotis more favorable shifts was not actionable.

Lastly, the Appellate Division reiterated what many tend to forget – that “[e]mployees are not entitled to a perfect workplace, free of annoyances and colleagues [they find] disagreeable.” In viewing the “totality of the relevant circumstances,” the Appellate Division acknowledged that “pejorative language and boorish conduct pervade[ed] Iron Bar’s atmosphere” and that Bouziotis “was a participant in much of the complained of conduct, engaging in much of the same language that” she then challenged. In this context, the Appellate Division did not see Remlinger’s name calling, or anyone else’s conduct for that matter, as anything more than “[u]nprofessional behavior . . . [which,] while inappropriate, differs from the discriminatory acts actionable under the LAD.”

Bottom Line

Bouziotis’s case is a rare victory for employers that comes with a forceful reminder that complained of misconduct must still be based on a protected characteristic to be actionable. While employers should take note that allowing such “loutish” behavior to permeate the workplace in the first place is dangerous and fraught with peril, they should take some comfort in knowing that the courts will look at the totality of the circumstances before casting judgment.

For more information regarding this decision and for guidance and strategy on how to draft and implement HR policies and properly document employee performance issues, please contact lead Partner of the Firm’s Human Resources, Counseling & Compliance Group, Dina M. Mastellone, Esq., via email here or or call 973.533.0777.