Co-worker Harassment Leads to $150K Jury Verdict and $69K in Attorney Fees Despite Only $3K Wage Loss.

 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.

Employer's Inadvertent Actions Effectively Ended Workplace Harassment, and Thus, Were Reasonable.

In June, the Sixth Circuit affirmed an employer’s summary judgment on workplace harassment and retaliation claims where the plaintiff had alleged that the employer’s investigation and response to the harassment claims were inadequate and denied her a promotion in retaliation for her complaints.  Doe v. City of Detroit, 3 F.4^th 294 (6^th Cir. 2021).   The plaintiff had been subjected to anonymous threats by a co-worker.  Although the employer interviewed a suspect following the second incident, it did not interview him following any of the death threats.  The Court affirmed dismissal of the hostile work environment claims because the employer’s response to each incident was reasonable and the final action – in inadvertently suspending and relocating the suspect – was apparently effective, and thus reasonable, in ending the anonymous harassment.  The Court also found no evidence that the plaintiff had been denied a promotion on account of her prior harassment complaints.

According to the Court’s decision, the plaintiff began transitioning about six months after being hired.  Following the plaintiff’s first series of medical procedures, a co-worker submitted complaints that the plaintiff had violated the employer’s dress code.  Although the plaintiff was informed about only the existence of the complaints, she was reassured that her attire was appropriate.  Following the plaintiff’s second series of medical procedures, her office name plate was defaced, which the City immediately rectified.  A few days later, the plaintiff received an anonymous gift bag with sex toys and a handwritten Bible verse about men wearing women’s clothing.  The employer conducted an immediate investigation, interviewed all nearby employees and required handwriting samples from each of them.  The perpetrator was never identified.  The investigation report recommended a few months later that a lock be installed on the plaintiff’s office door, but did not approve the plaintiff’s request for a security camera. 

Five months later, the plaintiff received a typed anonymous death threat.  The employer reported the incident to the police (which refused to investigate) and finally requested a lock for her office door, but refused the security camera, permission to keep her door shut during office hours or to permit her to work from home. A few employees were questioned, but not the individual who had previously filed the dress code complaints.  A few weeks later, another anonymous death threat was made. The City temporarily relocated the plaintiff’s office, installed locks and a security camera and again questioned a few employees, but not the employee who had previously made the dress code complaints.  At that point, the plaintiff suggested that the perpetrator might be that employee.  A few weeks after that, the employer learned that employee had inappropriately accessed the plaintiff’s Facebook page and discussed it with subordinates.  He was given a three-day suspension and his office was relocated onto a different floor from the plaintiff.  There were no further harassing incidents or threats made against the plaintiff.

The plaintiff then complained that her work was being subjected to more criticism, etc.  Her supervisor resigned and suggested someone else to be promoted instead of plaintiff.   The supervisor’s suggestion was not taken, but the decisionmaker promoted a different employee other than the plaintiff. 

The trial court and Sixth Circuit ruled in favor of the employer on the harassment and retaliation claims.   It addressed the City’s response to each incident, rather than evaluating whether the initial response was adequate for the escalation.   While the plaintiff and the alleged perpetrator were both supervisors, neither had authority over the other; they were essentially co-workers.  Thus, the Court evaluated the matter as co-worker harassment.  When workplace harassment is

committed by a coworker, the employer is liable only “if it knew or should have known of the charged sexual harassment and failed to implement prompt and appropriate corrective action . . . To find liability, the employer’s response to a coworker’s harassment must “manifest[] indifference or unreasonableness in light of the facts the employer knew or should have known.” . . .  An employer’s response is generally adequate “if it is ‘reasonably calculated to end the harassment.’” . . . . “The appropriate corrective response will vary according to the severity and persistence of the alleged harassment.” . . . “Steps that would ‘establish a base level of reasonably appropriate corrective action’ may include promptly initiating an investigation[,] . . . ‘speaking with the specific individuals identified’” in the complaint, “following up with the complainant,” and “reporting the harassment to others in management.”

The employer immediately rectified the graffiti and conducted an immediate and thorough investigation following the gift bag incident.   The Court rejected the plaintiff’s argument that the employer’s response was unreasonable (in that no perpetrator was ever identified) because in another case the employer had unreasonably delayed 10 days in conducting an investigation, already knew the identity of the alleged perpetrator and had failed to separate the perpetrator from the victim with an administrative suspension.

“The most significant immediate measure an employer can take in response to a sexual harassment complaint is to launch a prompt investigation to determine whether the complaint is justified.” . . . “By doing so, ‘the employer puts all employees on notice that it takes such allegations seriously and will not tolerate harassment in the workplace.’”

The Court also rejected the plaintiff’s argument that the employer’s actions were unreasonable in delaying the installation of door locks or security cameras following the first two incidents:

“a harassment victim may not dictate an employer’s action against a co-worker.” . . . . While taking these measures would have been reasonable, failing to do so does not render the city “so indifferent to [Doe’s] concerns that it essentially permitted the harassment to continue.”

The employer’s response to the first death threat was also found to be reasonable as the police were contacted within three days and a request was made to install locks on the plaintiff’s office door.  While the plaintiff argued that it was unreasonable to not have then interviewed the employee who had previously complained about her attire, she admits that she never suspected him at this time either and there was no evidence tying him to any of the incidents.

Further, on this record, it was not unreasonable for the city to require Doe to return to the office. Nothing in the record indicates that Doe’s job was capable of remote performance. And the city took steps to address the harassment. Although these steps were ultimately unsuccessful in preventing the final act of harassment—the note on May 22—the city did not “exhibit[] indifference rising to an attitude of permissiveness that amounted to discrimination.”

Finally, the Court found that the City’s response to the final threat was reasonable even though by then the plaintiff had identified a possible suspect and neither the employer nor the police ever interviewed him about any of the death threats.  Rather, it was after this final threat that the City learned about the Facebook incident, suspended the suspect and relocated his office.  After that, the plaintiff suffered no more harassment.  The Court agreed that even inadvertent action by an employer can be effective in ending workplace harassment.

An inadequate investigation may render an employer’s response unreasonable. . . . But the city also temporarily relocated Doe at her request to a different floor until locks and security cameras could be installed. And the city moved Allen to another floor shortly thereafter, which both Doe and Allen assumed had something to do with the Facebook incident. See Harris v. Sodders, No. 07-4398, 2009 WL 331633, at *2 (6th Cir. Feb. 11, 2009) (employer’s actions appropriate in part because “[e]ven though [employer] was unaware of the alleged harassment, his decision to transfer [the harasser] had the inadvertent effect of stopping the harassment”). Doe agrees that there have been no further incidents since May 22, 2017. If Allen was indeed responsible for these incidents, it appears that moving him, disciplining him, and installing locks and cameras effectively ended the harassment. . . . These efforts did not “manifest[] indifference or unreasonableness in light of the facts the employer knew or should have known,” so “we cannot say that the employer has itself committed an act of discrimination.”

Finally, the Court affirmed dismissal of the retaliation claim because there was no evidence that the decisionmaker based his decision in any way on the plaintiff’s protected conduct.  More than five months had passed since her last complaint and the promotion decision.   Her suspicions do no constitute evidence that the promotion decision was tainted or that her supervisor's criticisms were retaliatory.

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.

Sixth Circuit Rejects Retaliation Claim When Plaintiffs Were About to Be Terminated Before Raising Harassment Claim

Last week, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment in a racial harassment and retaliation case on the grounds, among other things, that it had already pretty much been decided to terminate the plaintiffs before they engaged in any protected conduct.  Reynolds v. Federal Express Corp., No.  13-5010 (6^th Cir. 10-8-13).   In that case, one plaintiff had suffered some racial and union-related comments from a co-worker, but failed to bring the matter to the attention of management.  As the plaintiffs were suspended pending an investigation into allegations of rampant unauthorized absences (which they contend was raised by their racist co-workers) and a decision whether to terminate them, they first raised the issue of a racially hostile work environment and then claimed that their termination 20 days later was in retaliation for their complaint.  The Court rejected the claim that management was merely a “cat’s paw” for their racist co-workers because there was no evidence that the author of the anonymous letter harbored any racial animus. The Court also rejected their claim of a hostile work environment on the grounds that the incidents were too few, remote and minor to constitute unlawful harassment.

According to the Court’s opinion, the plaintiffs argued that the temporal proximity of their complaint of a hostile work environment and their termination 20 days later was sufficient to prove causation for their retaliation claim.  The Court disagreed because management was already contemplating terminating them and most of the investigation had been conducted before they raised their complaint during the meeting about their suspension.

 

That [the manager] fired the plaintiffs 20 days later “is immaterial in light of the fact that [FedEx] concededly was contemplating [the adverse employment action] before it learned of [the protected activity].” . . . Employers “proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality.”

Moreover, even if the plaintiffs were able to establish causation and a prima facie case of retaliation, the Court found that they could not prove the employer’s explanation for their termination was pretextual:

A plaintiff must show that the employer did not honestly believe the reasons cited for the adverse employment action. A.C. ex rel. J.C. v. Shelby Cnty. Bd. of Educ., 711 F.3d 687, 705 (6th Cir. 2013); Braithwaite v. Timken Co., 258 F.3d 488, 494 (6th Cir. 2001). A plaintiff may show that an employer does not honestly believe the reasons for its decision because it acted without information or consideration.

While the parties disputed the accuracy of the employer’s investigation results and its decision to terminate the plaintiffs, “there was nothing to suggest an “error too obvious to be unintentional,” or a sham investigation. The decision to terminate the plaintiffs was based on a reasonable investigation which considered documents, interviews with the plaintiffs and an unbiased co-worker, etc.

Finally, the Court rejected the plaintiff’s hostile work environment claim.  “The evidence [of harassment] needs to be specific.  A plaintiff may not rely on only, for example, “one specific incident of the use of a . . . race-based epithet” over entire span of her five-year employment and an otherwise “total lack of specificity as to verbal abuse.”  In this case, the plaintiff “testified about harassment on only two specific occasions. And when asked at his deposition how many times he heard [the co-worker’s] comments, [he] responded that “I can’t give you a count” never explaining the frequency of the comments, or how the comments affected his work.”  Title VII only prohibits harassment that is so severe that it alters the conditions of employment.  “A worker does not establish a hostile-work-environment claim by testifying that “there were times” he faced verbal abuse but specifically identifying only two occasions.”

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.

Sixth Circuit: No Hostile Work Environment When Plaintiff Cannot Recall Specific Words or Frequency

This morning, in a remarkably brief and concise eight-page opinion, the federal Sixth Circuit Court of Appeals affirmed summary judgment against a former massage therapist who had alleged that she had been fired for complaining about a hostile work environment. Keane v. IT-Works, Inc., No. 10-2512 (6th Cir. 3/7/12). The Court found that she could not satisfy her burden of proving a hostile work environment when she could not remember the specific words which the allegedly harassing co-worker had said or how often he was allegedly offensive. Without that evidence, she could not prove that his conduct was severe or pervasive. In addition, she could not show that the employer failed to take reasonable steps to stop the harassment when it had acted on her complaints to stop her co-worker’s offensive comments and there was no evidence that anyone complained about him after that point in time. Finally, she could not prove retaliation when she wasn’t fired until more than two months after she had complained about his offensive comments, and she had received both a favorable performance evaluation and a 7% raise between the time of her complaint and the time she was fired (for gossiping about the employer’s financial condition with her co-workers). “Intervening favorable actions of an employer may not be a complete bar to recovery, cf. Clay v. United Parcel Service, Inc., 501 F.3d 695, 711 (6th Cir. 2007), but they assuredly weigh against a claim of retaliation.”

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.

Sixth Circuit Revives Hostile Workplace Sexual Harassment Claim But Finds Plaintiff Failed to Utilize All Options To Report Supervisor Harassment

On Friday, the Sixth Circuit reversed a summary judgment for a Cleveland area employer on a hostile work environment sexual harassment claim brought by an employee who had resigned four years earlier. Gallagher v. C.H. Robinson Worldwide, Inc., No. 08-3337 (6th Cir. 5/22/09). During the brief four months of her employment, “she complained to her immediate supervisor about the crude and offensive language and conduct of her co-workers, but her complaints fell on deaf ears. Disgusted, she resigned” in part because of the office celebration leading up to the OSU-Miami national collegiate championship football game on January 2, 2003. The Court found that the plaintiff produced enough evidence that she was subjected to an objectively and subjectively hostile work environment even though much of the offensive conduct and comments were not directed specifically at her, but were facially offensive to most women. Moreover, the company was on notice about the offensive conduct by her co-workers because she complained to her supervisor about it and because her supervisor witnessed and participated in some of it. Nonetheless, the Court agreed that the employer would not be liable for strictly supervisory harassment allegations because there was no tangible job actions and because the plaintiff failed to utilize alternative methods of reporting the alleged harassment by her supervisor based on unsupported suspicions of retaliation.

According to the Court’s opinion, the plaintiff was hired into an inside sales position and worked from a cubicle where employees had very little privacy, could overhear others’ conversations and see their computer monitors. The plaintiff “describes the atmosphere at the Cleveland office of CHR during her four-month tenure as being much like “a guys’ locker room” characterized by unprofessional behavior on the part of both males and females, and an environment that was hostile to women. She testified to the prevalent use of foul language by mostly male coworkers who openly and loudly referred to female customers, truck drivers, coworkers and others as bitches, whores, sluts, dykes and cunts. She testified that male and female co-workers viewed sexually explicit pictures on their computers (although the only incident she could specifically recall was a sexually explicit picture on co-worker Angela Sarris’ computer during the Christmas holidays), and that male coworkers left pornographic magazines lying open on their desks. Gallagher testified that, on several occasions, Starosto brought in nude pictures of his girlfriend in different sexual poses and shared those pictures with several of his male co-workers who occasionally brought in, and shared, pictures of their own with him. She testified that her male co-workers traded sexual jokes and engaged in graphic discussions about their sexual liaisons, fantasies and preferences in her presence on a daily basis. Gallagher also testified that some of the employees drank beer in the office in the afternoon on Fridays, that some male co-workers came in to the office on Saturdays (when branch manager Greg Quast was not there) without a shirt on, that one woman planned her entire wedding at the office, and that another planned her baby shower at the office.”

As for the offensive conduct towards the Plaintiff, she testified that she was once called a “bitch” and another time a co-worker said that the company satisfied two quotas when she was hired: the female quota and the “fat” quota. She further alleged that a co-worker “made several derogatory comments about her weight, and [another employee] once referred to [her] as a “heifer” with “milking udders,” and “moo”ed when she walked by his desk. [She] testified that on one Saturday when she was scheduled to work, three male co-workers came into the office following a session at a gym in the building next door. [One] co-worker, who was wearing only a towel and announced that he was “commando” (meaning that he was wearing no underwear) sat on [a nearby] desk, displaying his whole thigh, and talked with the others about anal sex, their enjoyment of it and how [an employee’s] girlfriend objected to it. On the next business day, [the plaintiff] complained to [her supervisor] about this incident and told him she did not want to work on Saturdays anymore.” She also described how a co-worker would repeatedly physically block her from walking down an aisle until she spoke to him.

The Company “has policies prohibiting discrimination and harassment on the basis of gender, and prohibiting the electronic dissemination of sexually explicit materials through e-mail or the Internet. [The plaintiff] received copies of these policies on her first day of work. The sexual harassment policy requires employees to report complaints of sexual harassment to the legal department, the branch resources manager, or the branch manager. It provides names and phone numbers for the legal department and the branch resources manager. Although [she] signed an acknowledgment stating that she read the policy and agreed to comply with its terms, she testified at deposition that she did not recall reading it before signing it, that she did not keep a copy of it and that she could not recall asking anyone for a copy. The sexual harassment and email and Internet policies are also available on the company’s internal website, along with an anonymous third-party toll-free hotline and an anonymous e-mail service for reporting incidents of discrimination or inappropriate behavior.”

The Company also required employees “to sign certificates stating that they have complied with CHR’s policies during the preceding year – and that if they have any questions about those policies, to contact the Compliance Officer before signing the certificate. Although [she] testifies that the sexually offensive conduct occurred from the beginning of her employment, she signed a compliance certificate on November 25, 2002, but never contacted the Compliance Officer regarding offensive conduct. Rather, [the plaintiff] testified that she complained frequently to [her supervisor] about the unprofessional and sexually offensive workplace conduct to little or no avail. Although [her supervisor] had his own office, he seldom used it; and he usually required [her] to voice her complaints to him at his work station. Often, he would simply yell at the offending employee to stop the conduct because it was bothering [her] which, she says, subjected her only to more ridicule. Although [she] was aware of the anonymous 800 tip line, she refused to use it because some coworkers and [her supervisor] referred to the number as “the waw-waw line” and one co-worker told her not to call the line because the last person who did, lost her job.”

After the plaintiff received a job offer from a prior employer, she claims that she decided to resign on January 3, 2003. “This was the day of the National Championship football game between Ohio State University and the Miami Hurricanes. She testified that a female co-worker brought Jello shots into the office that day and that, in the early afternoon, many coworkers stopped working and started drinking. When Gallagher left, she discovered that she had a flat tire, went back into the office and asked for help changing it. Several drunk male co-workers laughed at her and when they left the building, they got into their trucks and “flipped her off” when passing her by.” She later formally submitted her letter of resignation on January 8 and began her new job on January 13, 2003.

The district court held that the plaintiff did not present enough evidence to support her prima facie case of sexual harassment or discrimination under state or federal law. “First, the evidence was deemed insufficient to support a finding that the harassment Gallagher experienced was based on her sex. The court found that most of the offensive language and conduct was “indiscriminate;” i.e., was not directed at plaintiff, and was not shown to have occurred because Gallagher is a woman. Second, the harassing conduct, albeit subjectively offensive to Gallagher, was deemed not to be so objectively severe and pervasive as to have unreasonably interfered with her work performance. Third, the court concluded that [the employer] could not be held liable for offensive conduct engaged in by its employees because Gallagher failed to take advantage of several available avenues for reporting the conduct to upper management, but instead reported it only to her immediate supervisor, who she acknowledged could not handle the situation.” The Court of Appeals reversed.

There were instances in the workplace when Gallagher was repeatedly called a “bitch” by a co-worker in anger, was referred to by another as a “heifer” with “milking udders,” and was taunted by a male co-worker wearing nothing but a towel around his waist when she was the only female in the office. These incidents, in which offensive conduct was directed at Gallagher, reflect sex-discriminatory animus. Yet, the record suggests that much of the other highly offensive conduct was not directed at Gallagher. Among the commonplace offensive occurrences, Gallagher complained of: co-workers’ vulgar descriptions of female customers, associates and even friends as “bitches,” “whores,” “sluts,” “dykes,” and “cunts;” co-workers’ joint ogling and discussions of obscene photographs and pornographic magazines; and co-workers’ explicit conversations about their own sexual practices and strip club exploits. Gallagher could not avoid exposure to these offensive behaviors because they occurred in close proximity to her work station, where she was required to be. Still, the offensive conduct does not appear to have been motivated by Gallagher’s presence or by the fact that she is a woman.”

The District Court relied Williams v. General Motors Corp., 187 F.3d 553, 565 (6th Cir. 1999), for the proposition that the “based on sex” element makes it incumbent on [the plaintiff] to show that the offensive conduct “occurred because she is a woman.” However, that reliance was misplaced because “in Williams, the court was addressing a different question, i.e., whether harassing conduct that is not sexually explicit may nonetheless satisfy the “based on sex” requirement. . . . In other words, even non-sexual harassing conduct may be deemed to be based on sex if the plaintiff is otherwise able to show that, but for the fact of her sex, she would not have been the object of the harassment.”

Here, in contrast, most of the complained of harassment just summarized—both conduct directed at Gallagher and indiscriminate conduct—is explicitly sexual and patently degrading of women. The natural effect of exposure to such offensive conduct is embarrassment, humiliation and degradation, irrespective of the harasser’s motivation—especially and all the more so if the captive recipient of the harassment is a woman. In connection with such evidence, it is hardly necessary for Gallagher to otherwise show that the conduct evinces anti-female animus; it is obvious. Hence, even though members of both sexes were exposed to the offensive conduct in the Cleveland office, considering the nature of the patently degrading and anti-female nature of the harassment, it stands to reason that women would suffer, as a result of the exposure,greater disadvantage in the terms and conditions of their employment than men.

“The district court, in evaluating the “based on sex” element, focused too narrowly on the motivation for the harassers’ offensive conduct rather than on the effects of the conduct on the victim-recipient.” As for the “equal opportunity harasser” defense, “a harasser whose offensive conduct afflicts both men and women is not an “equal opportunity curser” if the conduct is more offensive to women than men.”

The Court also found the trial court to have erred in determining “that the harassment was not shown to be so severe and pervasive as to interfere with Gallagher’s job performance.” The Court reiterated that the standard puts “the focus of the objective/subjective inquiry should remain on (1) whether a reasonable person would find the environment objectively hostile, and (2) whether the plaintiff subjectively found the conduct ‘severe or pervasive.’ Further, . . . this evaluation of the work environment must take into account the totality of the circumstances. “[E]ven where individual instances of sexual harassment do not on their own create a hostile environment, the accumulated effect of such incidents may result in a Title VII violation.” While the trial “court emphasized that most of the offensive conduct was not directed” at the plaintiff, which is not an irrelevant consideration, the “court appears to have ignored the fact that, due to the configuration of the Cleveland workplace, it was practically impossible for [the plaintiff] to avoid her co-workers’ offensive conduct. Whether the offensive conduct was intentionally directed specifically at [her] or not, the fact remains that she had no means of escaping her co-workers’ loud insulting language and degrading conversations; she was unavoidably exposed to it. Her complaints to co-workers and her supervisor were not only ignored, but actually tended to exacerbate the harassment.”

Further, the district court erroneously insisted on a showing that the harassment was both subjectively and objectively severe and pervasive; whereas the Williams standard requires a showing that the environment is objectively hostile and the harassment subjectively severe and pervasive. The district court had no trouble concluding there was a triable issue as to whether the harassment was subjectively severe and pervasive. The next question thus should have been whether a reasonable person could have found the environment objectively hostile. Considering the totality of the circumstances as described in Gallagher’s deposition, the conclusion is inescapable that a reasonable person could have found the Cleveland office—permeated with vulgar language, demeaning conversations and images, and palpable anti-female animus—objectively hostile. The district court reached a contrary conclusion by erroneously limiting its consideration only to some instances of abusive conduct, instead of considering the workplace as a whole.

Moreover, the district court also erred in requiring evidence that [the plaintiff's] work performance suffered measurably as a result of the harassment. The court placed inordinate weight on Gallagher’s testimony that she was able to meet her daily and weekly quotas and that her work performance was rated average to above average. In finding that [the plaintiff] failed to present any evidence that the harassment unreasonably interfered with her work, the court ignored her testimony that, from day one in the Cleveland office, she was “horrified” by the loudness, constant swearing and vulgar language, and that she “left there every day crying.” Considering Gallagher’s description of the offensive conduct to which she was exposed, her reaction can hardly be dismissed as implausible, unreasonable, exaggerated or hypersensitive. Nor is it improbable that the hostility and antagonism she experienced rendered her work more difficult. In Williams, the court made it clear that a plaintiff need not prove a tangible decline in her work productivity; only “that the harassment made it more difficult to do the job.” Based on the instant record, a reasonable jury could certainly find that the complained of harassment made it more difficult for Gallagher to do her job.

The Court also disagreed that the employer could not be held liable for the harassment. “Evaluating [the employer’s] liability for the offensive environment in the Cleveland office thus depends fundamentally on whether [her] hostile work
environment claims are based on co-worker harassment or supervisor harassment. [She] insists the answer is “both,” and the record supports her position.” The Plaintiff’s immediate supervisor “was present during and witnessed much of the conduct, participated in some of it, received reports from [the plaintiff] of incidents he did not witness, and through his inaction during the four-month period, ostensibly condoned it all. In other words, both co-workers and supervisor were clearly complicit in creating and maintaining the hostile work environment. This is significant.”

Notably, the district court’s analysis of employer liability appears to have been based on the implicit assumption that the case involved only supervisor harassment. If this case were strictly about supervisor harassment, the district court’s analysis would arguably be correct. Applying the law summarized above in Petrosino, it is apparent that [the supervisor’s] participation in the harassment did not ripen into any tangible employment action against [the plaintiff], such as firing or demotion.” Moreover, the plaintiff did “not challenge the facial adequacy of [the employer’s] sexual harassment policy, but maintains she reasonably tried to take advantage of it by reporting her complaints to her office manager . . . . She contends the lack of resulting corrective action demonstrates the ineffectiveness of the policy.” Of “the many means and opportunities available to [her], she employed only one. Limiting her reports of harassment to [her supervisor] alone was clearly unreasonable, the district court found, because it had become clear to [her] in her first weeks on the job that [her supervisor] was part of the problem, not the solution.

Indeed, the policy expressly provides alternative avenues for reporting harassment where an employee’s supervisor is involved in the harassment. Yet, despite her knowledge of the alternatives, [the plaintiff] did not report her concerns to any other person in management. As the district court put it, “she chose, instead, to deal with the problem by leaving the company for another, higher-paying job with her previous employer.” The plaintiff’s “decision to leave her employment with [the defendant employer] appears clearly to have been reasonable. However, her failure to take reasonable steps to ensure her employer was actually aware of the harassment and had a chance to correct it before she left undercuts her present effort to impose liability on [the employer] based on supervisory complicity in the harassment.” The Court agreed with this analysis and rejected the plaintiff’s subjective and unwarranted suspicions that she would be retaliated against if she utilized other alternatives of reporting the harassment. “An employee’s subjective fears of confrontation, unpleasantness or retaliation do not alleviate the employee’s duty under Ellerth to alert the employer to the allegedly hostile environment.”

Nonetheless, even if her claim for supervisory harassment failed, an “employer is vicariously liable for co-worker harassment of which it knew or should have known if it failed to take appropriate remedial action, i.e., if its response manifests indifference or unreasonableness.” In this case, it was undisputed that the plaintiff reported much of the offensive conduct by her co-workers and the supervisor even witnessed and participated in some of it. “The facts substantiate a finding the [supervisor] knew or should have known of the offensive conduct and of [plaintiff’s] objection to it. Yet, in the absence of evidence that this knowledge extended higher up in the chain of management, the question is whether [the supervisor’s] knowledge is properly imputed to [the employer].. As explained above, [his] knowledge alone is insufficient to warrant imposing liability on [the employer] for supervisor harassment, but liability for co-worker harassment is different.”

An employer is deemed to have notice of harassment reported to any supervisor or department head who has been authorized—or is reasonably believed by a
complaining employee to have been authorized—to receive and respond to or forward such complaints to management.

The parties disagreed about the effectiveness and reasonableness of the supervisor’s reaction to the plaintiff’s complaints about her co-workers. “Because a reasonable jury could find that [the employer] knew or should have known of the sexual harassment [she] experienced and yet responded with manifest indifference or unreasonably, the district court’s conclusion that the premises for employer liability are lacking is erroneous.”

Insomniacs can read the full opinion at http://www.ca6.uscourts.gov/opinions.pdf/09a0184p-06.pdf.

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.