Yesterday, the Sixth Circuit affirmed an employer’s summary judgment dismissing a workplace harassment and retaliation claim. Hamm v. Pullman SST, Inc., No. 25-1617 (6th Cir. 2-12-26). The plaintiff alleged that he was harassed by his co-workers and the construction superintendent and then was fired in retaliation for complaining. The Court found that the employer’s actions to respond to his complaints were sufficient based on the information provided and his repeated failure to accept alternative work assignments gave the employer an honest belief that he was not interested in continuing his employment, justifying his termination.
According to the Court’s opinion, the plaintiff was hired by
the construction manager and reported to the superintendent. After a few months, he mentioned that he was
bi-sexual to a co-worker, who told others.
Starting in November, he was called derogatory names by his co-workers
and the superintendent. He finally reported to the manager in mid-February
that unnamed co-workers were calling him homophobic slurs, but did not mention
that he was bi-sexual. Thinking it was
merely a personality conflict, the manager spoke to the crew and the problem
was resolved for a couple of weeks.
However, when it started again, he complained again to the manager in
mid-March about two co-workers and the superintendent referring to him with
homophobic slurs. The manager said he
would take care of it, still without any knowledge that this was a sexual
harassment complaint because of the vagueness of the complaint. The plaintiff claimed that the mistreatment
continued, culminating in him leaving the worksite never to return on April 29
because of an anxiety attack.
He finally formally reported the problem on April 29 to HR,
which conducted a thorough investigation.
Everyone – including the allegedly neutral witnesses – denied his
allegations, except for the superintendent losing his temper with him on April
29. Instead, he was described as
lazy. The superintendent was formally warned. All of the supervisors were required to
submit to anti-harassment training and the employees were required to re-read
and re-sign the anti-harassment policy. Nonetheless, the plaintiff refused to return
to work and began a medical leave for his anxiety. Throughout the month of May, he was offered five
different re-assignments to different work locations, but he objected to all of
them for reasons other than his medical leave or anxiety. While he never technically refused, he never
accepted them either and had secretly recorded at least one of job offers. After twice extending his medical leave, he
inquired about returning to work and was told that his employment had been
terminated.
The Court declined to address a number of potential issues
and others the parties chose to not dispute, including whether this constituted
harassment prohibited by Title VII, whether the periodic comments were
sufficient to create a hostile work environment, etc.
The Court rejected the argument that the employer was automatically
liable for any comments by the superintendent because the plaintiff failed to
produce any evidence that the superintendent took or could take any tangible
employment actions, making him a supervisor whose actions would bind the
employer. Instead, the superintendent was treated as a co-worker.
Employers are only held liable for co-worker harassment if
it was negligent – i.e., it knew or should have known about the harassment and unreasonably
failed to stop it.
Or, as our own caselaw puts it, the
employer’s response must “manifest[] indifference or unreasonableness in light
of the facts the employer knew or should have known.” . . . If, then, an employer takes “prompt and
appropriate corrective action” after learning of the harassment, employees
cannot tie the harassment to the employer. . . .
The Court concluded that the plaintiff failed to show manifest
indifference by the employer. The manager
took immediate and effective action in response to his first (February) vague
complaint (which had not identified any specific individuals because he had not
wanted to get anyone in trouble). The manager’s action about the second (March) complaint
were still deemed sufficient since the plaintiff still had not provided
information indicating that this was a sexual discrimination issue. The HR
Department conducted an immediate investigation which failed to corroborate his
allegations and was not required to believe him, particularly when none of his
own witnesses corroborated his allegations.
Moreover, the employer took action in any event to prevent future
harassment, including training and counseling. When the manager learned the details of the
problem in early May, he immediately agreed to reassign the plaintiff and
approved the medical leave and extensions.
He also offered the plaintiff alternative assignments which addressed his
stated objections.
The Court rejected the plaintiff’s arguments that he had
never actually refused the alternative work assignments. However, based on his own secret recordings
of the conversations, it was clear he had raised objections and never actually
accepted the job offers. Thus, the
employer had an honest belief that he had rejected them:
And during the call with [the manager]
(that [the plaintiff] secretly recorded), [the plaintiff] said he was “not at
all” good at this type of work. . . .
[His] response to this offer came as close to an express denial as it could.
All this said, we agree that [he] did not expressly deny most of the jobs. For
example, he did not say “No” to driving to Toledo or Cincinnati. Rather, he
asked a question: “Isn’t that a hike?” .
. . . And he did not say “No” to the
overhead demolition work; he simply said that this work “hurts [his] shoulder.”
. . . Given his clear reluctance to take these jobs,
we doubt that any reasonable jury could rely on this lawyerly argument to prove
[the employer’s] pretext.
At day’s end, though, we need not
resolve this debate over whether [the manager] made formal offers or whether [the
plaintiff] gave formal denials. When an employee claims that an employer’s
reason for an adverse action had no basis in fact, the employer does not need
to prove that reason in court. . . . . It
just needs to prove that it held an “honest belief” that the reason was true. . . . . . So, for example, an employer who
fires an employee for fraud does not need to establish that the employee
committed the fraud—just that it honestly believed the employee did so. . . . . And the employee cannot show pretext merely by
showing that the reason was false. . . .
.. This rule applies here. Whether or not [the plaintiff] actually declined
these many offers, [the employer] at least held an “honest belief” that he did.
. . . And [his] “own assertions” that he never
denied any assignment do not suffice to overcome this honest-belief rule.
The Court also rejected the plaintiff’s argument that he was
not required to accept the alternative assignments because he was on medical
leave. He never once raised his medical
leave or his anxiety as a reason that he rejected the five possible
re-assignments. Instead, he “raised
concerns that the worksite was too far away, or too high in the air, or too
demanding on his shoulders, or too late in the day given other appointments.” Moreover,
the assignments were offered before he extended his medical leave.
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.
