“Psycho bitch” name calling – bad idea

The old playground adage that “sticks and stones can break your bones, but names can never hurt you” doesn’t apply to the world of employment litigation.  Name calling can get expensive, particularly if you have what appears to be a case that would otherwise merit summary judgment.

A motion for summary judgment is typically filed early in the very early stages of litigation, before the parties get deeply involved with the costly discovery phase of the case (document production, interrogatories, and depositions), or trial.  If it’s successful, a motion for summary judgment can end the lawsuit.  That’s why they’re so attractive.

In order to win a motion for summary judgment, the moving party has to convince the judge that there is no material fact for the jury to decide AND that there’s no case as a matter of law when all of the evidence is viewed in favor of the non-moving party (usually the plaintiff).  Basically, you’re trying to show that even if you give the non-moving party the benefit of the doubt on everything, they’re still all wet; that even if they’re “right,” they still don’t have a case under the law.

The motion for summary judgment strategy is exactly what one New Jersey employer pursued in trying to nip a hostile work environment suit in the bud.  The trial court granted the motion.  But, the Appellate Division reversed that decision.  The reversal was due to the employer calling the plaintiff a “psycho bitch” – not the best word choice. 

More specifically, the lower court’s conclusion that the name calling wasn’t severe or pervasive enough to create a hostile work environment, even though the comment wasn’t made to the plaintiff’s face, was rejected.  “Bitch” was a gender specific reference according to the higher court and could rise to the level of a claim if the plaintiff could prove that it contributed to a hostile environment that impacted her.  (Remember, in this type of motion the non-moving party is given the benefit of every doubt – it’s a high standard.)

Had the employer had kept their cool and not let their buttons get pushed; the case would probably be over.  Instead, it will proceed to trial if it’s not otherwise settled.  Ca-ching. 

(See DiPasquale v. State of New Jersey, 2009 WL 1686186 (App.Div., June 18, 2009)