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What Not to Do in a Hostile Work Environment Case

BY Kenneth J. McCulloch
December 01, 2003

A recent decision, Boggs v. Die Fliedermaus, d/b/a Le Bar Bat, 2003 WL 22299315 (S.D.N.Y. 10/07/03) (Sweet, D. J.), offers many lessons for employers about what to do, and not to do, to position themselves for a successful summary judgment motion in a hostile work environment case.

This dispute has an extensive and tortured history. The plaintiffs in Boggs were hostesses at Le Bar Bat, a well-known New York City bar and restaurant. One of the Defendants, Patrick Kelly, the Director of Banquets and Public Relations, had earlier been charged with, and convicted of, federal crimes of obstruction of justice and witness tampering for trying to have witnesses lie about events. Defendant Larry Cerrone, the General Manager, was alleged to have referred to three of the African-American plaintiffs as “dark, light, and semi-sweet chocolate,” and when they worked nights together, he referred to the shift as “chocolate night”. When one of these plaintiffs complained, he apologized, but continued thereafter to refer to that employee as “you people.” Cerrone was also accused of speaking to one of the plaintiffs in Ebonics for 2 weeks. Another employee said Cerrone frequently made comments of a sexual nature to her and engaged in unwanted physical contact, like hugging, kissing, and rubbing her shoulders, leading her to quit her job.

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