Last month, the Sixth Circuit affirmed a jury verdict finding that the employer had not discriminated or retaliated against the plaintiff, but had subjected her to a hostile work environment on account of her gender. Schlosser v. VRHabilis, LLS, No. 23-6019 (6th Cir. Aug 26, 2024). The Court rejected the employer’s attempt to restrict to the harassment claim to verbal abuse and concluded that the discrete acts of discrimination – upon which the jury had refused to impose liability – could also be considered to support the harassment verdict.
According to the Court’s opinion, the plaintiff was hired as
the only female diver to retrieve unexploded ordinance from the sea bed. There was evidence that her first supervisor
repeatedly denigrated her, subjected her to different conditions of employment and
held her to a higher performance standard than her male co-workers. She was
verbally coached by the COO after her first week, but did not see the formal
document until litigation commenced which contained a number of issues which
she disputed. She was restricted from
diving and driving by her first supervisor.
When she made a formal complaint to their site manager, he did nothing
about any of it. She then complained to
HR, which was investigated by the COO and Project Manager. This investigation confirmed that she was
been singled out and treated differently on account of her gender. She was then transferred to a different dive
team, although it was disputed if this was because of the investigation or
because her first supervisor demanded that she be removed from his team. In any event, her first supervisor was never
disciplined or trained regarding sexual and gender-based harassment.
Although HR had attempted to follow up on the plaintiff’s
formal complaint, the plaintiff never responded. Instead, after her transfer, she emailed HR
that all of her issues had been promptly resolved and exceeded her expectations.
The plaintiff’s performance improved following
her transfer and she outperformed several male colleagues. Nonetheless, the Project Manager instructed
that she again be prevented from diving based her performance evaluation from
her first – discriminatory – supervisor as the least productive diver. However, at trial, they acknowledged that she
was not the least productive diver, who was never prevented from diving as she
was.
On her new team, one of her co-workers routinely denigrated
her, often calling her the B***h word. Three
times this was done within earshot of her second supervisor, who did nothing
about it. When the co-worker complained
about her and an investigation commenced, the plaintiff refused to cooperate
with it, even to describe his offensive behavior. Instead, she resigned, complaining about the
rampant sexual harassment she experienced on almost a daily basis in the 10
weeks she worked there. Instead of investigating
her new allegations, the company was relieved that she had left. Shortly thereafter, she filed a Charge of
Discrimination and filed suit. While the
jury found that she had not been discriminated or retaliated against, it found
in her favor on her sexual harassment claim and awarded her almost $60K in back
pay. The company appealed.
The Court refused to confine the harassment claim to the
verbal abuse the plaintiff suffered.
Instead, it agreed that the supervisor’s overall treatment of her could
be considered, including the restrictions on diving and driving, etc. “Although
discrete acts of discrimination are not independently actionable as a hostile
work environment claim, the jury may certainly consider such acts in its
evaluation of the overall working environment.”
While there was evidence of mere personality conflicts, the
Court found that the plaintiff produced sufficient evidence to support the jury
verdict that the harassment was related to her gender and not just her
personality or job performance. First,
she was subjected to different terms, conditions and performance expectations
than her male co-workers. Second, her
first supervisor and a later co-worker repeated referred to her as “B***h”. “Such a term is indubitably sexually
degrading and gender specific.” This
was also corroborated by her male co-workers during the COO’s investigation of
her initial harassment complaint.
Overall, the
multiple instances in which [the plaintiff] was ostracized while her male
counterparts were not, coupled with the gender-specific epithets used, provide
sufficient evidence for a reasonable jury to find that the complained of
harassment was based on [her] gender or sex. Of course, the evidence could also
support the conclusion that the harassment was tied to personal conflict,
rather than gender; however, this Court may not reweigh the evidence to
override the jury’s reasonable determination.
The Court also found sufficient evidence of severe and pervasive
harassment: “not a day of her ten weeks at [the employer] passed without some
type of sexual harassment or ostracization. Accordingly, the totality of the
circumstances could reasonably indicate that [she] suffered pervasive
harassment that altered her job environment, conditions, and performance.”
The jury fairly concluded that
[she] did not endure “simple teasing” or “isolated incidents.” . . . Instead, as the lone female diver, [she] faced
daily threats to her employment, derogatory comments, verbal harassment, foul
language, and constant changes to her pay and position “to which members of the
opposite sex were not exposed.” . . . . And this harassment occurred daily
throughout a compressed period of ten weeks. For these reasons, a reasonable
juror could find that a hostile work environment existed.
The Court also found that the employer could be held liable
for the harassment because some of it was by her first supervisor and the rest
was by a co-worker with knowledge of her second supervisor. The first supervisor’s restriction on her
diving resulted in a reduction in her compensation – a tangible employment
action.
[The employer]
attempts to skirt liability for [the co-worker’s] actions by arguing that [the
plaintiff] refused to report the harassment or provide a written statement
regarding the second incident in which [he] screamed profanities at [her],
including calling [her] a “slimy bitch.” This may be true, but it is not
dispositive for the employer-notice inquiry, which asks whether [the employer]
knew about the harassment. . . . . . . Throughout
each described incident of sexual harassment, [the second supervisor] knew of
the charged sexual harassment but failed to take any corrective action at all.
. . .\
. . . [The second supervisor] heard [the co-worker]
berating [her] on multiple occasions, calling her a “bitch,” and being
aggressive towards her. Yet [the supervisor] never reprimanded [the co-worker]
or took any action to correct this pattern of behavior. . . . . . A reasonable
jury could find that [the supervisor] knew of the harassment and made no
attempt to correct the problem of the sexually harassing behavior, thus
establishing the required negligence on [the employer’s] part. Because [it]
does not dispute that [he] may properly be considered a supervisor, this
inaction may be reasonably imputed to [the employer].
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.
