Last week, the Franklin County Court of Appeals affirmed the dismissal of a sexual harassment and discrimination claim involving harassment by the supervisor of the area next to the plaintiff's work area. McGraw v. Pilot Travel Ctrs., L.L.C., 2012-Ohio-1076. The Court concluded that the employer was not liable for any sexual harassment that may have occurred on Boxing Day 2009 because the supervisor did not directly manage the plaintiff and the employer took reasonable steps to prevent further harassment. The fact that the plaintiff resigned a month later (which she attributed at the time to insufficient work hours) precluded her from showing that the employer's steps were not reasonable. The Court further found that the supervisor's regular references to her as "sweetie" and "baby" were insufficiently severe or frequent to create a hostile work environment. Finally, the Court dismissed the discrimination claims on the grounds that she did not identify any males who were treated better or were hired to replace her.
According to the Court's unanimous opinion, the plaintiff worked the night shift in the restaurant section of the employer's store. One of the supervisors for the store (who did not have significant authority over the plaintiff except when she occasionally filled in as a cashier in the store) worked the second shift and generally only overlapped with plaintiff's shift for about two hours/day. Soon after he began working at the store, the plaintiff complained to the general manager of the store and restaurant that the supervisor often smelled of alcohol and referred to her as "baby." She did not feel that the manager took any action on her complaint and she complained several more times about the supervisor referring to her as "sweetie," "baby," and "hun."
On December 26, 2009, the supervisor filled in on the night shift for another employee. During the course of the night, he rubbed up against the plaintiff, suggested that they engage in sexual acts in the back hallway, and kept asking her to hug him or hold his hand. The plaintiff reported the incident to her supervisor a few days later and to the manager a few days after that. She said that she never wanted to work with him again. She never did.
The plaintiff never knew what disciplinary action, if any, was taken against the supervisor. She began looking for another job after a week and resigned about two weeks after the incident. Her resignation letter attributed her departure to the few number of hours she had been scheduled and poor management. She did not mention the Boxing Day incident with the supervisor.
The Court declined to hold the employer vicariously liable for the supervisor's Boxing Day actions because he was not her direct supervisor or manager.
An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate or successively higher authority over the employee. . . . The 6th Circuit has held a supervisor is "an individual who 'serves in a supervisory position and exercises significant control over the plaintiff's hiring, firing or conditions of employment.' "
The Court found that the supervisor did not have any authority to hire or fire her and only was responsible for her for a few minutes on occasion when she would cover the cash register at the store if the restaurant was slow. This was insufficient to make him her supervisor and did not constitute significant control over the terms and conditions of her employment. "While [he] was on a higher level of authority than [her], he did not have any direct control over [her] and only indirect control in limited instances."
As to the seemingly inconsistent statements between [her] deposition and [her] affidavit, we find the deposition testimony to be more on point and directly answers the question as to whether [he] was actually [her] supervisor. Further the conclusory statements made in the affidavit do not establish [him] as her supervisor without corresponding evidence as to how [he] controlled her conditions of employment. We find that, while [he] was a manager, he was not [her] designated supervisor. While he could direct actions when [she] was helping out on the travel center side he could not significantly change her conditions of employment, . . .
Having concluded that the supervisor was really a co-worker for purposes of evaluating the employer's liability, the Court then found that the employer's actions were reasonable under the circumstances to prevent further harassment. Prior to the Boxing Day incident, the supervisor's references to her as "baby" or "sweetie" for at most two hours of her shift were insufficiently severe or pervasive to constitute a hostile work environment. Moreover, even if the Boxing Day behavior were unacceptable, it was never repeated because management took steps to ensure that they were never scheduled to work at the same time again and spoke to the supervisor about his unacceptable behavior.
A company may be held liable for co-worker harassment if its response manifests indifference or unreasonableness in light of the facts the employer knew or should have known. A response is generally adequate if it is reasonably calculated to end the harassment. And whether a response is effective is measured not by the extent to which the employer disciplines or punishes the alleged harasser, but rather if the steps taken by the defendant halt the harassment. Evaluation of the response is a fact-specific inquiry and must be done on a case-by-case basis.
While it cannot be certain that the employer would have continued this work schedule, the plaintiff's subsequent resignation rendered that issue irrelevant.
The Court rejected the plaintiff's claim that she was constructively discharged on account of her sex since she could not identify any males who were treated better or hired to replace her.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
