According to the Court’s opinion,
the plaintiff had been hired as a bagger and was subsequently promoted into the
seafood department. She had been given
the employer’s sexual harassment policy, which directed her to bring concerns
to her supervisor, her manager or to a certain employee (who had previously
died) who chaired the store’s investigation committee. About a month after her promotion in February
2013, she claimed that her supervisor subjected her on a daily basis to
inappropriate sexual comments and suggestions, many of which were graphic and
gross. Although she regularly objected
to his conduct and suffered emotional and physical distress from it, she did
not report it to management because he told her that he was just kidding and
implicitly threatened her when he said that he knew that she liked her job.
Another employee reported the
alleged harassment of the plaintiff to the assistant store manager, who then
reported it to the store manager (who now chaired the store’s investigation
committee). After speaking with the
plaintiff, the store managers interviewed her supervisor and two other
employees (who did not corroborate the plaintiff’s allegations). They did not interview all of the department
employees or obtain written statements from the department employees. Nonetheless, they issued a disciplinary
action on May 5 directing the supervisor to cease any sexual comments under penalty
of immediate termination. The plaintiff
was instructed to report any further problems to the store manager and she
declined the opportunity to transfer out of the department. Her working hours were changed so that she
would no longer work with her supervisor.
There was conflicting evidence
about whether the inappropriate comments continued. The plaintiff at one point testified that he
only whispered about her to other employees.
She claimed, however, that he retaliated against her by denying her time
off, etc. She did not immediately bring
these issues to management even though they regularly walked through her
department and checked in with her in order to ensure that she was suffering no
further harassment. Nonetheless, the
plaintiff filed an OCRC Charge on May 28 alleging sexual harassment. She was almost immediately transferred back
to bagging without any reduction in pay and declined the owner’s offer to
return her to the seafood department.
She subsequently injured her knee and was medically restricted to a
sitting position. Accordingly, the store
gave her its only light duty position as the store greeter. However, she resigned because she felt that
she had been put in that position in order to ridicule her.
The plaintiff filed suit in
November. The following May, the store
finally interviewed the rest of the seafood department employees almost a year
after its first investigation and received further corroboration of the sexual
harassment and that it continued after the plaintiff had been transferred out
of the department.
Unlike the trial court, the Court
of Appeals found that the plaintiff produced sufficient evidence that her
supervisor created a hostile working environment with his daily sexual comments
and suggestions because his conduct could be found by a jury to be sufficiently
severe and pervasive enough to alter the terms and conditions of employment. The Court also found that the alleged
harassment was also objectively and subjectively hostile to a reasonable person
in the plaintiff’s position. Evidence
about her failure to complain, the testimony of co-workers that they never
witnessed the alleged harassment and the fact that she accepted a ride home
from the harasser only affected the weight of the employer’s defense and not
whether the plaintiff could prevail at trial.
Unlike the trial court, the Court
also found that there was sufficient evidence to hold the employer vicariously liable
for the harassment. First, it found
that there remained issues of material fact about whether the employer could
raise the “no tangible employment action” defense. The plaintiff could not show that her
harassing supervisor had taken any tangible actions because her transfers, etc.
had been taken by upper store management.
Nonetheless, the employer was not entitled to summary judgment on the
defense because it could not show that it took sufficient steps to prevent and
remedy harassment. In particular, its
policy did not explicitly provide for informal or verbal complaints. There were also issues as to whether the
employer actively implemented the policy or trained supervisors or staff about
it because it had not been updated following the death of the investigations
committee chair and none of the managers had received training about harassment
or how to conduct investigations. Second, the employer did not interview all of
the departmental employees identified by the plaintiff in her interview or
obtain written statements from any departmental employees until after the
plaintiff filed her OCRC Charge. The Court
also faulted the employer for leaving the plaintiff in the department, only
periodically touching base with her thereafter and not training the harasser
about how his conduct had been objectionable.
As for her retaliation claim, the
trial court had found that the transfer back to a bagging position at the same
rate of pay was lateral and therefore, not materially adverse. The Court of Appeals found this to be a
disputed factual issue because a bagger’s diminished responsibility might
have deterred a reasonable person from filing an OCRC Charge. Further, the plaintiff could show a causal
connection between her transfer and her protected activity because she was
transferred almost immediately (or within a few days) after the employer
learned that she had filed her OCRC Charge. It also found a factual dispute as to whether
the employer’s legitimate business reason for transferring her – to protect her
from further sexual harassment – was pretextual because it had not transferred
her earlier even though she had allegedly complained about continued harassment. A jury could reasonably find that she had
been transferred in retaliation for filing her OCRC Charge
because the harasser could have been transferred or suspended instead.
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 be changed or 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.
