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4th Circuit revives police recruit discrimination case

A federal appellate panel has revived part of a hostile work environment lawsuit brought against the city of Hagerstown by a black, female former police recruit.

In a 2-1 decision, judges on the 4th U.S. Circuit Court of Appeals held that Tiffany Mosby-Grant’s gender-based claim can be heard at trial, but agreed with the lower court that her claim of racial discrimination was properly dismissed.

Mosby-Grant was enrolled in the Western Maryland Police Academy in January 2006 and was dismissed five months later, purportedly because she failed a firearms test on the final training day.

Mosby-Grant alleged she was “subjected to an environment of severe, pervasive and abusive discrimination” and “systematically made to feel like an outsider” while enrolled in the training program, according to her lawsuit filed in U.S. District Court in July 2007. (Mosby-Grant had filed a complaint with the Equal Employment Opportunity Commission in August 2006.)

Mosby-Grant heard male instructors and recruits use the word “bitch” at least 10 times during her training and heard recruits “brazenly and repeatedly describe a sexual encounter with a 16-year-old girl,” according to the appellate court opinion. The recruits also used crude descriptors for female body parts and complained that Mosby-Grant was given “special treatment” regarding the program’s dress code because she was a woman.

U.S. District Judge Benson E. Legg granted the city’s motions for summary judgment on both the gender- and race-based hostile work environment claims in September 2009. But Judge Roger L. Gregory, writing for the appellate-panel majority, found that “Mosby-Grant presented enough evidence for a reasonable jury to conclude that she was exposed to a hostile work environment because of her sex.”

“A factual record that demonstrates that the workplace was contaminated with explicit and derogatory references to women provides an adequate basis for a plaintiff to show that the harassment occurred ‘because of’ her gender,” Gregory wrote on Dec. 20.

But Mosby-Grant lacked evidence to proceed on her racial discrimination claim, the judge continued. While some recruits used racial slurs, they were infrequent and never directed at Mosby-Grant. The one time Mosby-Grant overheard racist comments, she confronted the offending recruit, who then apologized, Gregory wrote.

“We are keenly aware of the difficulties inherent in parsing out Title VII claims brought by individuals … who fall under more than one protected class,” Gregory wrote. “Nevertheless, there are now two distinct counts before us, and the evidence of the pervasiveness or severity of racial animus at the Academy is too isolated and too minimal to survive summary judgment.”

Gregory was joined in the majority by Judge Damon J. Keith, a senior judge from the 6th Circuit sitting by designation. Judge Paul V. Niemeyer dissented, writing the incidents of gender discrimination were “too isolated and too few to be severe and pervasive” based on case law.

Neither Brian M. Maul of Gordon & Simmons LLC in Frederick, Mosby-Grant’s lawyer, nor Matthew D. Peter of the Local Government Insurance Trust in Hanover, the city’s lawyer, could be reached for comment.

Mosby-Grant subsequently filed suit against the Frederick County Sheriff’s Office in May 2009, alleging she was denied a job as a deputy there in 2007 in part because of her lawsuit against Hagerstown. Maul stipulated to the Frederick case’s dismissal with prejudice in April, according to court records.