Sixth Circuit Affirms $300K Jury Verdict in Same Sex Hostile Work Environment Case Despite Employer Taking Disciplinary Action within a Few Weeks

Last week, the Sixth Circuit affirmed a $300K jury verdict on a same-sex hostile work environment claim.  Smith v. Rock-Tenn Services, Inc. No. 15-5534 (6^th Cir. 2-10-16).   After the district court had granted summary judgment to the employer on the retaliation and constructive discharge claims, the jury trial focused on the male plaintiff’s claim of offensive touching by a co-worker, the employer’s slow response to his complaint, the employer’s failure to consult the co-worker’s personnel file to discover evidence of prior similar complaints and disciplinary action, and its failure to immediately separate the victim from the harasser, and otherwise ineffectively respond to the plaintiff’s concerns.  Although the plaintiff only had three interactions with the harasser, he and management were aware of other similar incidents.  The employer delayed 10 days to initiate an informal investigation and only suspended the harasser, despite threatening to fire him just a few months earlier for engaging in similar misconduct.  The decisionmaker had not been informed about, and did not consult his personnel file concerning, prior disciplinary actions or similar incidents.  Further, although the employer took disciplinary action within a few weeks, it never separated the victim from the harasser, which so distressed the plaintiff that he left and never returned to work.  The Court found that the jury was reasonable in finding harassment to exist and that the employer’s response was inadequate under the circumstances.

According to the Court’s opinion, the plaintiff received the employer’s employee handbook and sexual harassment policy during his orientation shortly after he was hired in August 2010.  The employer’s policy encouraged employees to attempt to work matters out between themselves before involving management.  In December of 2011, plaintiff observed the harasser grab a co-worker’s buttocks. A few months later, he then slapped plaintiff’s bottom when he walked by, causing the plaintiff to point at him and tell him to keep his hands off. 

The following week, the harasser grabbed the plaintiff’s bottom so hard that it hurt, which resulted in the plaintiff grabbing his harm and telling him that if he didn’t stop, someone would get hurt.  Plaintiff did not report either incident to management.  In early June, while the plaintiff was bent over picking up boxes, the harasser hunched over him and engaged in grinding.  This resulted in the plaintiff grabbing him by the throat and sharing a few choice words.  The harasser later apologized, but the plaintiff was so upset that he went home.

This final incident was brought to the attention of a few co-workers, one of whom told the plant superintendent.  The plaintiff told his female supervisor on the following Monday and learned that this had not been an isolated incident.  The plant superintendent questioned the plaintiff about it that Monday and said that nothing would be done until the operations manager returned from vacation on Friday. 

The plaintiff was sent back to the same work area as the harasser.   By this time, the plaintiff was so upset that he kept making mistakes in his work.  When he and the harasser were sent together for a hearing test, the plaintiff had become very angry.  Even though there were no other incidents with the harasser, the plaintiff suffered an anxiety attack within 10 days of the last incident.  He then requested medical leave to seek counselling from the emotional distress he suffered from the unaddressed harassment.   His request was granted.

Upon receiving the request for medical leave – 10 days after the incident had been reported, the operations manager spoke with a few employees and supervisors about the incident, but no interview notes or witness statements were taken.  The entire investigation was reflected on a single page of handwritten notes.  The harasser claimed that the plaintiff had backed into him and there were no other eyewitnesses.   There were some indications that similar incidents had happened before, but no follow up interviews were conducted. 

Although the superintendent, supervisor and human resources recommended that the harasser be terminated, the employer’s general manager only suspended him for two days.  This was supposedly without pay, but the harasser testified that he was paid.   The General Manager later admitted that he had not sought or considered the harasser’s prior disciplinary history or similar incidents. 

In fact, the superintendent and operations manager involved in this investigation were aware that the harasser had been warned in writing in March 2011 not to touch other employees or he would be terminated. He had touched a male co-worker standing at a urinal and was written up for harassment-horseplay.  Again, no witness statements had been taken.  The harassment policy had been reviewed with the harasser and the documentation had been placed in his personnel file. Human Resources had also been involved in an undocumented similar incident.    Yet, no one told the General Manager, who was in charge of disciplinary actions.

The plaintiff never returned to work and spent the next 18 months taking medication for anxiety and insomnia.  After exhausting his short-term disability, he was diagnosed with PTSD.  The harasser was not fired until July 2014 after he admitted during his deposition to mooning and/or touching other men in the workplace.   All of his misconduct had been directed against men.  There was apparently no evidence that he had ever been inappropriate with a female employee.

While the employer attempted to argue that the harasser’s conduct had simply been horseplay, the plaintiff convinced the jury that it was harassment by showing that only men were exposed to offensive touching.  “[T]he jury apparently found that pinching and slapping someone on the buttocks or grinding one’s pelvis into another’s behind goes far beyond horseplay.”  The Court also rejected the employer’s argument that the plaintiff essentially worked in a gender segregated department (rather than a mixed-sex environment) because 30% of the workforce were women (including the plaintiff’s supervisor) and women passed through the department regularly.  The Court also refused to require the plaintiff to prove more than the absence of offensive conduct towards women in order to prevail on a same-sex harassment claim.  

The Court also rejected the employer’s arguments that the harasser’s three interactions with the plaintiff were not severe or pervasive enough to constitute a hostile work environment because the plaintiff’s case could also rely on other incidents by the harasser which the plaintiff observed or learned about during his employment.  In addition, offensive touching is considered to be more severe than verbal insults or comments.  “’[W]hether harassment was so severe and pervasive as to constitute a hostile work environment to be ‘quintessentially a question of fact.’”  In particular, the Court found that the jury’s conclusion was not unreasonable based on the evidence presented.

 

The Court also found the employer’s response to be inadequate because there was documentation of recent prior similar incidents and disciplinary actions involving the harasser, but that information was not shared with decisionmakers or followed-up in any deliberate fashion.  The employer’s policy of taking witness statements and preparing a formal report were not followed.  

To impose liability on an employer for the harassing conduct of a plaintiff’s co-worker, a “plaintiff must show that the employer’s response to the plaintiff’s complaints ‘manifest[ed] indifference or unreasonableness in light of the facts the employer knew or should have known.’”  . . . A plaintiff must therefore show that the employer “knew or should have known of the harassment” and “failed to take prompt and appropriate corrective action.”  “Generally, a response is adequate if it is reasonably calculated to end the harassment.”  . . . Appropriate steps “may include promptly initiating an investigation.”  . . . Even separating the harasser and victim immediately may not be enough without further action on the employer’s part.

Although the employer argued that the steps it took were clearly prompt and appropriate under the circumstances, the employer “fails to grasp that what it failed to do is just as important.”

In this case, a reasonable jury could have concluded that Defendant’s total inaction for ten days, where Defendant knew that Leonard had touched Plaintiff, and had told Leonard that further complaints would result in termination, was unreasonable.  Defendant did not separate the two men, suspend Leonard pending an investigation, or initiate its investigation in a timely manner; a reasonable jury could find that the failure to take any of these steps or others rendered its response neither prompt nor appropriate in light of what it knew or should have known regarding Leonard’s prior misconduct.

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.