Virginia Lawyers Weekly

A female air traffic controller gets another chance to prove her Title VII “hostile environment” claim in Alexandria federal court.
The Alexandria court pulled the trigger a little too fast when it granted summary judgment to the employer after refusing to consider affidavits from the woman’s coworkers, according to the 4th U.S. Circuit Court of Appeals’ Nov. 14 opinion in Ziskie v. Mineta (VLW 008-2-149).

But the plaintiff’s case is not exactly a slam dunk, as much of the behavior described occupies that borderland between the merely boorish and the truly hostile.

In its opinion remanding Ziskie’s case, the 4th Circuit panel threads its way through its recent decisions that try to draw a line between situations that present “serious impediments” to minority and female workers, and situations “when human nature simply is not at its best.”

Cynthia Ziskie worked as an air traffic controller at the Federal Aviation Administration’s Washington Air Route Traffic Control Center in Leesburg from 1982 until her retirement in 2005.

From 1991 into 2002, Ziskie worked a part-time schedule, Mondays through Wednesdays. When the Center eliminated part-time employment in 2002, Ziskie was denied an extension of her part-time schedule to make child care arrangements. After she was switched to a full-time schedule, Ziskie called in sick on Thursdays and Fridays for eight straight weeks, earning a reprimand for abuse of sick leave. She returned to a part-time schedule in the fall of 2002.

Ziskie first complained of sexual harassment after cancellation of the part-time schedules, citing the “unremitting use of profanity, sexual innuendos, mass flatulence” and other conduct “intended to make female workers uncomfortable and ill at ease.”
Profanity and crude language and behavior were commonplace, according to the 4th Circuit opinion.

But Ziskie also alleged that male coworkers removed equipment she needed to do her job, and once a male controller handed off a plane into Ziskie’s sector, putting it on a collision course with other planes that Ziskie had to divert.

A study commissioned by management indicated that seven employees believed Ziskie’s work group had problems with gender relations, but no one was disciplined as a result of the complaints or the study. In 2005, the Department of Transportation’s Civil Rights Office made a formal finding that no discrimination had occurred.

When Ziskie’s Title VII hostile environment claim came before Senior U.S. District Judge Claude M. Hilton, the judge said Ziskie had not shown that her treatment was severe or pervasive enough to constitute an abusive work environment. The appellate court said, please take another look.

In a string of cases decided since 2001, the 4th Circuit has rejected the idea that only conduct specifically directed at the plaintiff could be used to prove a hostile environment, wrote Judge J. Harvie Wilkinson III.

Evidence about how other employees were treated in the same workplace can be probative of whether the environment was indeed a sexually hostile one, even if the plaintiff did not witness the conduct herself, the panel said.

Even though she won a remand, Ziskie still had a weak case, Wilkinson suggested.

“Some persons, for reasons wholly unrelated to race or gender, manage to make themselves disliked,” the judge wrote. The record indicated Ziskie first complained of specific incidents of harassment after it appeared her colleagues were working full weeks while she abused sick leave in order to enjoy four-day weekends, conduct “unlikely to endear Ziskie to her colleagues,” Wilkinson said.

Coworkers also did not take warmly to the fact that Ziskie was “keeping book” on them, with a diary record of every conceivably offensive comment, their arrivals and departures and their alleged lack of assistance.

On the other hand, several of the coworker affidavits alluded to “problems in the coordination of handoffs between one air traffic controller’s sector and another,” which could show that Ziskie’s perception of a hostile sexual environment claim was objectively reasonable.

Affirming judgment for the employer of Ziskie’s retaliation claim, the 4th Circuit sent her hostile environment claim back to the district court.

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