Last month, the Loraine County Court of Appeals affirmed a jury verdict of over $150K in compensatory and punitive damages for co-worker sexual harassment, constructive discharge and negligent supervision claims as well as almost $69K in attorney fees. Morgan v. Consun Food Industies, Inc., 2024-Ohio-2300. The plaintiff proved that she was treated differently when her complaints were ignored and when she was disciplined for misconduct while male employee misconduct on the same evening was ignored. “[H]arassing conduct that is simply abusive, with no sexual element, can support a claim for hostile-environment sexual harassment if it is directed at the plaintiff because of his or her sex.” Further, management’s indifference to her complaint and failure to address incidents with the harassing employee destroyed its affirmative defense.
According to the Court’s opinion, the plaintiff was hired in
September 2011 and was subjected to harassment by a male co-worker. She complained to management and resigned in
May 2012 when insufficient action was taken. During the nine-day jury trial, she testified
how this male co-worker terrorized her, other female employees and female
guests. For example, she became
extremely upset after an incident when she looked over at him, and he
responded: ““what the fuck are you looking at, you fucking bitch[.]” She
complained to the supervisor and he said it was just how he was. He also elbowed her, followed her around
making mocking comments, and threw hot food at her, burning her hands. He also “made comments about “breasts,” “cow
udder tits,” and aborting babies, which were all comments directed toward women
and not men.” The store manager told her
that he did not have time to discuss her complaint about the co-worker. In April, shortly after the co-worker had left
for the day, she found a large knife stabbed into the box of cleaning gloves
that she used. The shift leader was
unconcerned, but she called the police and reported the incident. The next morning, she was written up and put
on a performance plan for failing to refrigerate hot food the prior evening,
which the store manager noticed when he reviewed surveillance film. He said nothing about the knife incident,
which should also have been on the film. The following month, the co-worker continued
to follow her in the store and she resigned without first having found another
job. Two female co-workers corroborated
her accounts and added that the store manager laughed at the co-worker’s
behavior.
The
Court held that the two-year limitations period for torts would not be applied
to the negligent supervision claim because the underlying facts were closer to
the discrimination and harassment claims, which were then subject to a six year
limitations period.
The
Court also agreed that the plaintiff had shown discriminatory treatment when
she was disciplined for failing to refrigerate hot food on the same night that
her male co-worker had stabbed her box of cleaning gloves, prompting her to
call the police and report it. (The
employer did not refute any of her allegations or put on any witnesses to
dispute testimony of the plaintiff or her witnesses). The Court found additional evidence of
disparate treatment when the store manager addressed a male employee’s
complaint about that employee, but accepted his denial at face value without
any other investigation when female employees complained about him and failed
to take any corrective action.
The plaintiff showed that his harassment was unwelcome:
Not only did [the
plaintiff] testify that [her co-worker’s] behavior was unwelcomed, she also
demonstrated it was unwelcomed by avoiding [him], complaining to her co-workers,
complaining to [the store manager], contacting . . . the corporate office, and calling the police.
She proved that it was harassment based on sex through
various comments that he made which were directed only at women and the fact
that his harassment was directed only at female employees and guests. For instance, “one elderly woman asked her
where the restroom was [and he] overheard the exchange and told the elderly
woman she could “piss outside by the dumpsters.””
Another witness testified that he
“would say things like women are meant to be
in the back and guys are in the front, and women are only good for sex[.]” She
also testified Mr. Wise “would always talk about our breasts, or our butts.
Anything sexual, he said[,]” and added the comments were “[t]hings that
typically you shouldn’t say to women * * * [but were] laughed at by [assistant
store manager] Mark and [store manager] Rich.” Ms. Green added that “the guys
were allowed to say whatever they wanted. * * * There were no consequences for
derogatory statements with any of my managers to my knowledge.”
The plaintiff also proved that the harassment was
sufficiently severe and pervasive to affect her ability to work:
[The plaintiff]
testified to the toll that [his] daily harassment and abuse took on her and how
Consun’s management’s failure to take any action to stop or acknowledge her
complaint made the situation worse for her. [She] testified to three separate
incidents where [his] harassing conduct was directed at specifically her, the
incidents were reported to her shift lead or management, and no further action
was taken by store management. [She] testified to the incident where [he]
called her a ”fucking bitch” and she was “shaking” and “frightened[.]” After
the incident, [her] friend brought her medication to the store to help calm her
down. [She] also testified [he] threw a five-pound bag of steaming hot mashed
potatoes at her, causing burns to her skin. Additionally, [she] testified to
finding the long knife stabbed into her box of gloves during an evening where [he]
was only one of two other employees left in the store.
Finally, the Court rejected the employer’s defense that it
did not know about the harassment when she only complained one time to the
store manager. At that time, the manager
said he did not have time to deal with her and refused her request to be
scheduled away from the hostile male employee.
She had also complained to her
shift supervisors and to the corporate office.
The
Court also agreed that it was proper to admit an expert to testify as to the
standard of care that an employer should take when an employee complains about
harassment and the type of anti-harassment training and policies employers
should utilize.
The
Court also found no abuse of discretion when the trial court rejected the
plaintiff’s attorney fee request from over $248K in hourly fees to $69K based
on the 45% contingency fee agreement with the plaintiff and the fact that the
attorney took five years to try a case that could and should have been tried in
2016.
The Court
also affirmed the denial of prejudgment interest on the grounds that the
employer engaged in good faith discovery and was not required to offer more
than $15K in settlement if that is how it reasonably evaluated its potential liability. For instance,
the plaintiff only lost less than $3,000 in wages after immediately finding a
new job.
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.
