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First Circuit Confirms: Insults and Poor Management Skills Not Sufficient Basis for Discrimination Claim

“A litany of petty insults, vindictive behavior, and angry recriminations” do not rise to the level of a discrimination, retaliation or hostile work environment claim. Bhatti v. Trustees of Boston University, 659 F.3d 64 (1st Cir. 2011). 

Claudine Bhatti, a black dental hygienist, started working for the Boston University Dental Center (“Center”) in 2003. She claimed discrimination, alleging that white hygienists were credited with a half hour of preparation time as part of their regular work schedules (i.e. they worked a half hour less each day) while black hygienists did not receive the same benefit. She also claimed that when she confronted the Center’s Director about this he informed her that “the white hygienists had been hired under a different set of policies.” 

Bhatti also alleged that the Center did not uniformly enforce its leave policy, requiring employees to submit written requests for leave and charging them sick or vacation time based on that request. According to Bhatti, while she was always required to request sick leave and vacation time in writing, the white hygienists were not required to do so. When she complained to her immediate supervisor, the supervisor told her she was “offended” by the allegation. When Bhatti escalated the complaint to the Center’s Director, he informed her that she would no longer be required to submit written requests to leave work ten minutes early. He refused, however, to compensate her for time previously docked. 

Finally, Bhatti claimed she was singled out and subjected to undue scrutiny, unwarranted criticism, and written reprimands in retaliation for alleging discrimination.

Upholding the lower court’s decision, the First Circuit held Bhatt had not presented sufficient evidence to prove her discrimination, retaliation or hostile work environment claims. First, Bhatti’s supervisor was equally rude, insensitive and harsh to all employees, regardless of race. Second, after disregarding Bhatti’s hearsay evidence - her own interrogatory answers and deposition testimony – of scheduling differences, Bhatti did not produce sufficient evidence to show she was treated differently than her white counterparts. Bhatti’s evidence may have shown “dysfunction in the Center’s management”, but it did not establish disparate treatment or bias.

According to the First Circuit, Bhatti did not produce sufficient evidence of retaliation, either. She may have been subjected to petty slights, minor annoyances or bad manners, but these actions did not materially change the conditions of her employment. Even the letter the Center’s Director put in her file was not sufficient because it did not carry with it any tangible consequences.

Similarly, the Court found that Bhatti’s evidence that she worked longer hours than white hygienists, was required to submit all requests for time off in writing, and was subjected to selective enforcement of workplace policies, taken as a whole, did not amount to a hostile or abusive work environment. Her supervisor was unpleasant to all employees and the conduct may have “crossed the boundary from professional to unprofessional,” but Bhatti was never physically threatened and the conduct was done privately so she was not humiliated.

Employers can take a few practical lessons from this case:

(1)        When an employee complains about a supervisor being rude or insensitive, look into the complaint. If the manager treats all employees the same it probably won’t be actionable. Reaching out to the employee, however, could save an employer future headaches and defense costs. The Center’s Director did not investigate Bhatti’s allegation that white hygienists worked less than their black counterparts. Bhatti’s supervisor, who was offended by the allegation that the leave policy was not uniformly applied to white and black employees, did not investigate this allegation. With no response from her employer, Bhatti chose legal action. A simple investigation and discussion might have avoided litigation.

(2)        The law may not require general civility or good management skills, but acknowledging employees’ complaints about a manager’s rude and insensitive behavior could help boost employee moral and productivity. If there are multiple complaints about one manager, talk to the manager about his or her interaction with employees. Provide management or sensitivity training. The cost associated with these items will be quite small compared to the cost of defending even a meritless lawsuit..

3)        Strive for uniformity in enforcing company policies. In Bhatti, it has been the company’s usual policy to allow employees to leave ten minutes early if their work was completed for the day without submitting a written request, but the agency never communicated this policy to Bhatti. Make sure managers are consistently trained and convey the same information and policies to employees to avoid employees reaching the conclusion that they are being treated differently than other employees.

As the Bhatti Court confirmed, insults, angry comments, and bad management are not actionable, but they can be expensive. Taking these small steps will minimize employee complaints and an employer’s exposure.

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