Unanimous Sixth Circuit Affirms $300K Sexually Hostile Work Environment Judgment, But Divides in Affirming Order for Employer to Pay Over $600K in Plaintiff’s Legal Fees

On Friday, the Sixth Circuit affirmed a trial court’s decision to award the prevailing plaintiff in a sexual harassment lawsuit the maximum amount under federal law ($300K) and to award to her attorney almost the full amount he requested as attorney fees ($684,506.25) even though the employer won the first trial in 2009 and all but one of the plaintiff’s initial claims were dismissed or withdrawn.  Waldo v. Consumers Energy Co., No. 12-1518 (6^th Cir. 8-9-13).  A unanimous Court agreed that she had proven her hostile work environment claim (based on events between 2001 and 2005) and rejected the employer’s technical defenses. The second jury had awarded her $7,900,000, but that amount was reduced because of Title VII’s statutory cap.  However, Court divided on the propriety of her attorney fees (which the employer had been ordered to pay).  The majority agreed that her attorney earned his fees, and that they should not be reduced to reflect that the first jury ruled in favor of the defendant, that virtually all of her claims had failed and that she had recovered only $300K because all of the claims arose around a common core of facts.  The dissent explained that the plaintiff’s attorneys “were the true winners. This is good work if you can get it.” 

The plaintiff’s allegations  -- which were largely corroborated, uncontradicted and/or conceded at trial – was that she had been subjected to a hostile work environment by her co-workers between 2001 and April 2005.  (Among other things, and as detailed in the Court’s opinion, they called her foul names, locked her in a porta-potty, and otherwise ostracized her).  She repeatedly complained to her supervisor and human resources, but no investigation was conducted, no disciplinary actions were issued and the employer’s diversity training did not cover name-calling.  Her supervisor never repeated her allegations to upper management or human resources.  The employer defended that there had been no illegal events in the 300 days before she filed her EEOC Charge and that some of the misconduct had not been specifically related to her gender.  The plaintiff also alleged retaliation when she was removed from a training program in June 2005 for making mistakes during a snap inspection in April.  The first jury rendered a verdict in favor of the employer, but the plaintiff was granted a new trial on only the hostile work environment claim and the second jury awarded her $7,900,000.

The Court rejected the employer’s argument that the harassment was not gender-based because some of the incidents were not sexual in nature (i.e., not sexual advances, physical contact or touching):   

This argument fails, because it construes too narrowly the types of conduct that can contribute to a work environment permeated with sexual harassment. We have held that “non-sexual conduct may be illegally sex-based where it evinces anti-female animus, and therefore could be found to have contributed significantly to the hostile environment.”

Moreover, a jury is to consider “the totality” of the facts and circumstances, so that evidence of the non-sexual incidents can be considered along with the evidence of the sexually-based incidents to “provide a basis for inferring that even the facially neutral incidents were based on [the plaintiff’s] gender.”   

The employer’s “failure to respond to known complaints demonstrated that [it] tolerated or condoned the harassing behavior, or, at the very least, that the company failed to take appropriate remedial action.” 

The employer attempted to exclude evidence of all incidents that took place more than 300 days before she filed her EEOC Charge and argued that she failed to identify any sexually harassing incidents within the 300-day limitations period.  The Court disagreed.  The Supreme Court has held that a hostile work environment that violates Title VII “occurs over a series of days or perhaps years . . . . Such claims are based on the cumulative effect of individual acts.”  Therefore, the jury could consider evidence of several years’ worth of harassing incidents as long as one of the incidents took place within the 300-day period. 

In addition, the Court found that she had identified sufficiently harassing incidents within the 300 days before she filed her EEOC Charge.  In particular, there was evidence that her co-workers continued to ostracize and isolate her within the relevant 300-day period: 

It was not an abuse of discretion for the district court to find that the clear weight of the evidence demonstrated ongoing isolation and an atmosphere of hostility towards Waldo, and that this atmosphere continued into 2005, when Waldo participated in the Step IV class. There was testimony from both Waldo and Cutts that Waldo’s coworkers ignored her and refused to speak with her during her Step IV class in 2005.  . . . Barnes, one of Waldo’s instructors in 2005, further corroborated this testimony when he stated that he reprimanded one of Waldo’s coworkers for making comments that he did not want to work with women and that women were not strong enough to do the job. . . . This type of conduct—ignoring and ostracizing a coworker—if motivated by gender-based animus, can be a form of gender-based harassment that contributes to a hostile work environment. . . . Because there was strong evidence that Waldo continued to face hostility and isolation in April 2005, the district court acted within its discretion by finding that the clear weight of the evidence demonstrated that at least one incident of harassing behavior contributing to the hostile environment occurred after March 12, 2005. Thus all of the relevant harassment could be considered.

The Court divided on the issue of requiring the employer to pay her attorney fees.  Prevailing civil rights plaintiffs are entitled to an award of attorney fees, but the amount of those fees is within the discretion of the court.  The plaintiff’s lead attorney fees were calculated at $400/hour as the “reasonable hourly rate” based on the court’s assessment of  the “prevailing market rate in the relevant community’”   The majority explained that 

the prevailing market rate is “that rate which  lawyers of comparable skill and experience can reasonably expect to command within the venue of the court of record.” Id. A district court is permitted to “rely on a party’s submissions, awards in analogous cases, state bar association  guidelines, and its own knowledge and experience in handling similar fee requests.”

“The district court considered appropriate factors in its analysis, and its determination of a reasonable hourly rate is not outside the range of reported rates for highly experienced attorneys in the area.”

 

The majority also concluded that the fee request should not be reduced based on the number of claims which were reduced.   The most critical factor is the “degree of success obtained.” 

 In cases when “a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee.”  Id. at 435. Accordingly, we have explained that “a reduction in attorney fees [awarded to a prevailing plaintiff] is to be applied only in rare and exceptional cases where specific evidence in the record requires it.”  . . . Specifically, a court should not measure a plaintiff’s success simply by using a ratio of successful claims to claims raised. . . . This is because when several claims arise from a common core of facts, “[m]uch of counsel’s time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by claim basis. Such a lawsuit cannot be viewed as a series of discrete claims.”

The majority also concluded that the plaintiff’s attorney had deserved the greater fee because  -- acting as a private attorney general – he proved the case; the second jury awarded her $7,900,000 and the amount was only reduced as required by statute.

Although the dissent insinuates that the attorney fee award was unreasonable because it was slightly more than twice as much as the damages award to Waldo, see Dissent at 30, 32, “[i]n the civil rights area, there is no requirement that the amount of an award of attorneys’ fees be proportional to the amount of the underlying award of damages.”  . . .  In City of Riverside, the Supreme Court upheld an attorney fee award that was more than seven times greater than the damages awarded to plaintiffs. We similarly have affirmed an attorney fee award that was more than five times the damages awarded to a plaintiff in a civil rights case, stating that “the value of the rights vindicated goes beyond the actual monetary award, and the amount of the actual award is not controlling.” McHenry v. Chadwick, 896 F.2d 184, 189 (6th Cir. 1990). As the Supreme Court explained in City of Riverside: “Congress enacted § 1988 specifically because it found that the private market for legal services failed to provide many victims of civil rights violations with effective access to the judicial process. . . . In order to ensure that lawyers would be willing to represent persons with legitimate civil rights grievances, Congress determined that it would be necessary to compensate lawyers for all time reasonably expended on a case.” 477 U.S. at 576, 578. Notwithstanding the dissent’s apparent displeasure with Congress’s chosen policy, our precedents establish that an attorney fee award in a civil rights case is not unreasonable merely because it is greater than the damages awarded to the plaintiff.

Finally, the majority refused to discount the fees for the first trial, where the jury ruled in favor of the employer on all claims.  ““[T]he question of whether a party ‘prevailed’ and whether a fee award is ‘reasonable’ is not one to parse too thinly . . . [based on] the number of trials required to reach a result.” 

The dissent objected to the reduction of only $1,000 of the requested attorney fees, “including for all work incurred to lose the first jury trial, all work incurred to lose six of the seven claims (four of them state law claims) and for all work incurred to win $300,000 in the second jury trial. One can be forgiven for thinking that Waldo’s two attorneys, not Waldo, were the true winners. This is good work if you can get it.” 

But the acceptance of these points in the aggregate here gives trial court discretion a bad name. I know of no case in which an appellate court upheld all fees for the first (losing) trial when the only reason for the second trial was the trial court’s granting of a new trial under Civil Rule 59(a)(1)(A), which is to say that the verdict was merely against the weight of the evidence, which is to say that the evidence would havepermitted a defense verdict to stand. See White v. Pence, 961 F.2d 776, 780 (8th Cir. 1992). There was nothing unfair about the first trial. Defense counsel did nothing wrong. The trial court did nothing wrong. And the jury did nothing wrong, as the evidence would have permitted a defense verdict to stand. All that happened was that the trial judge disagreed with the jury. If anyone did anything wrong, it was plaintiff’s counsel in failing to convince the jury to rule his way in the initial trial. No reduction, any reduction, for all of the work on the first trial? That is a heavy lift. Where, moreover, would this end? Would a second lost jury verdict and a second successful Civil Rule 59 motion for a second do-over permit fees as well? Some reduction was in order.  

. . . .  

I am prepared to hold my nose in upholding a lot of fee awards, whether they seem too small or too large at the time. But a blanket fee award of $684,506 for losing six of seven claims, including for all of the work in losing the first jury trial, is not one of them.

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 Sexual Harassment When Plaintiff Voluntarily Had Long-Term Affair With Her Boss

Yesterday, the Sixth Circuit affirmed summary judgment in favor of a construction employer on a sexual harassment claim brought by a woman who had a long-term affair with her boss, who was also her cousin’s husband.  Souther v. Posen Construction, Inc., No. 12-2256 (6^th Cir. 4-22-13).  The Court found that the plaintiff could not show that her supervisor’s advances were “unwelcome” or that having sex with him was a term or condition of her employment.

According to the Court’s opinion, the plaintiff met the individual defendant when he began dating her cousin in 1977 and she was a bridesmaid at their wedding.  They were still married at the time of his deposition.  He helped her get a job in 2005 as a trainee at the construction company where he then worked.    They began an affair that would last – off and on – until October 2010.  During this time, he never indicated – except once in a joke – that he would fire her if she stopped having sex with him.  The affair would continue even during seasonal layoffs and even after his employer closed their division and laid him off.  He paid some of her bills, made repairs at her home and took trips together and then rehired her to work when he found another job.  In September 2010, she was laid off – purportedly for lack of work.  Prior to this she had never complained to human resources or anyone else that she was being sexually harassed.

He then ended the affair in October and she retaliated by informing his employer of their affair and her desire to be rehired.  She filed a Charge with the EEOC and then the lawsuit.

To determine whether a co-worker’s sexual advances or requests are unwelcome, we focus on the plaintiff’s “words, deeds, and deportment.”  . . .  On this record, a jury could not find [his] advances unwelcome. First of all, [the plaintiff] never complained to [him], human resources, her union representative, or anyone else, that [his] advances were unwelcome. . . .

[The plaintiff’s] conduct during the relationship also demonstrates that the extramarital affair was not unwelcome. The record shows that [she] was a willing participant, even though [he] was the one who put things into motion. The two had known each other and were friends for close to thirty years when the affair began. They remained friendly during times when the affair was dormant. They took trips together. One involved an overnight camping trip. Another involved [her]visiting [him] in Lansing, where he was working a job for [the company]; [she] did not work for [the company] at the time. The couple resided together in a hotel while they both worked for [the company] in Toledo. The one time [she] threatened to disclose the affair to  [his] wife was after [he] ended it, when [she] became angry about being unemployed.  [He] freely gave [her] money when she asked, and never sought repayment. He offered to make repairs and upgrades to her home, and she freely accepted. Further, [she] trusted [him] with her private information, including her banking information. He once deposited into her bank account money she later used to pay bills. She also gave him the password to her email account so he could use it to send her resume on her behalf. Finally, during the entire course of the affair, [she] was sexually intimate with [him] and no one else. Given the nature of the close and consensual relationship, no jury could find [his] advances unwelcome.

The Court also found that she could not show that consenting to the affair was a term of her employment:  “[I]t was [him] who ended the affair, and he did so almost a month after [she] was laid off from [the company], so she cannot show that refusing his advances (which she never did) caused her layoff.

 

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.

A Hodgepodge of Activity in February

There have been a few interesting decisions within the past month in the employment context, but none of them are earth-shattering (unless you are facing a factually similar situation in your workplace).   The NLRB once again dinged a non-union employer for terminating an HR employee for discussing confidential salary information with co-workers because the employer failed to show she was a statutory supervisor and employees have a right to discuss wage information.  After she declined reinstatement, the employer offered “to make the former employee whole by paying her backpay, 401(k) contributions, medical expenses and interest in the total amount of $107,000, to revise its policy to delete the prohibition on employees of discussing their salaries, and to post a Board Notice describing these actions.”  Of course, whether this decision survives is an open question since the D.C. Court of Appeals ruled last month that President Obama lacked the authority to make three recess appointments to the NLRB on January 4, 2012 and, without those recess appointments, the NLRB lacks a quorum to vote.  (Yes, here we go again).  The NLRB announced it intended to appeal the decision in that particular case and essentially otherwise ignore the decision while conducting business as usual until the Supreme Court tells it otherwise.  The Sixth Circuit also issued a few interesting decisions.

In one case, Quinn v. Griffith, No. 12-1465 (6^th Cir. 2-21-13) the Sixth Circuit affirmed a jury verdict holding an employer liable for a sexually hostile work environment created by the manager in a two-person office and the imposition of punitive damages.  The employee apparently set up a hidden camera in the office to substantiate her allegations after the employer’s internal investigation concluded that it could not substantiate her allegations. The trial court refused to permit testimony by the employer’s lip-reading expert to rebut what the jury saw on the videotape.  Even without lost wages, the plaintiff was awarded $25,000 in compensatory damages and $50,000 in punitive damages.   (Attorney fees for a prevailing plaintiff were not discussed in the opinion).  The matter was remanded for the trial court to clarify or modify the allocation of damages among the individual and corporate defendant and among the state and federal claims.  The Court had no difficulty in rejecting the employer’s argument that it should not be held liable for the manager’s conduct because it failed to preserve the Ellerth/Faragher affirmative defense in its answer to the plaintiff’s complaint or in its summary judgment motion.  Moreover, the employer failed to present any evidence of how it had exercised reasonable care to prevent and remedy the harassment.   (Obviously, this is difficult when it failed to distribute a sexual harassment policy, but not impossible according to the Court).   The same could be said of its argument that it could not be liable for punitive damages.  “An employer may avoid liability by showing that it engaged in good-faith efforts to comply with Title VII, which is most often shown by effective implementation of an anti-harassment policy.”

The Sixth Circuit has also heard and rejected a few appeals involving firefighters suing the City of Columbus.   Yesterday’s decision in Arnold v. City of Columbus likewise found no evidence of race discrimination.  This case involved a series of external and internal investigations over a few years into the conduct of the inspections section/fire protection bureau of the fire department.  Employees complained, in particular, about how the internal investigations were conducted and alleged that they were treated differently than white employees in terms of the presence of union officers in interviews, whether certain interviews were tape recorded and whether they could object to the presence of union officers in interviews, etc.   Ultimately, the Court found that the plaintiffs were not treated differently on account of their race.   In the Fullen case, the Court upheld disciplinary action when a plaintiff refused to be interviewed in the presence of a union representative.

 

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.

Franklin County Court of Appeals Affirms Dismissal of Sexual Harassment Claim Against Supervisor

Last week, the Franklin County Court of Appeals affirmed the dismissal of a sexual harassment and discrimination claim involving harassment by the supervisor of the area next to the plaintiff's work area. McGraw v. Pilot Travel Ctrs., L.L.C., 2012-Ohio-1076. The Court concluded that the employer was not liable for any sexual harassment that may have occurred on Boxing Day 2009 because the supervisor did not directly manage the plaintiff and the employer took reasonable steps to prevent further harassment. The fact that the plaintiff resigned a month later (which she attributed at the time to insufficient work hours) precluded her from showing that the employer's steps were not reasonable. The Court further found that the supervisor's regular references to her as "sweetie" and "baby" were insufficiently severe or frequent to create a hostile work environment. Finally, the Court dismissed the discrimination claims on the grounds that she did not identify any males who were treated better or were hired to replace her.

According to the Court's unanimous opinion, the plaintiff worked the night shift in the restaurant section of the employer's store. One of the supervisors for the store (who did not have significant authority over the plaintiff except when she occasionally filled in as a cashier in the store) worked the second shift and generally only overlapped with plaintiff's shift for about two hours/day. Soon after he began working at the store, the plaintiff complained to the general manager of the store and restaurant that the supervisor often smelled of alcohol and referred to her as "baby." She did not feel that the manager took any action on her complaint and she complained several more times about the supervisor referring to her as "sweetie," "baby," and "hun."

On December 26, 2009, the supervisor filled in on the night shift for another employee. During the course of the night, he rubbed up against the plaintiff, suggested that they engage in sexual acts in the back hallway, and kept asking her to hug him or hold his hand. The plaintiff reported the incident to her supervisor a few days later and to the manager a few days after that. She said that she never wanted to work with him again. She never did.

The plaintiff never knew what disciplinary action, if any, was taken against the supervisor. She began looking for another job after a week and resigned about two weeks after the incident. Her resignation letter attributed her departure to the few number of hours she had been scheduled and poor management. She did not mention the Boxing Day incident with the supervisor.

The Court declined to hold the employer vicariously liable for the supervisor's Boxing Day actions because he was not her direct supervisor or manager.

An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate or successively higher authority over the employee. . . . The 6th Circuit has held a supervisor is "an individual who 'serves in a supervisory position and exercises significant control over the plaintiff's hiring, firing or conditions of employment.' "

The Court found that the supervisor did not have any authority to hire or fire her and only was responsible for her for a few minutes on occasion when she would cover the cash register at the store if the restaurant was slow. This was insufficient to make him her supervisor and did not constitute significant control over the terms and conditions of her employment. "While [he] was on a higher level of authority than [her], he did not have any direct control over [her] and only indirect control in limited instances."

As to the seemingly inconsistent statements between [her] deposition and [her] affidavit, we find the deposition testimony to be more on point and directly answers the question as to whether [he] was actually [her] supervisor. Further the conclusory statements made in the affidavit do not establish [him] as her supervisor without corresponding evidence as to how [he] controlled her conditions of employment. We find that, while [he] was a manager, he was not [her] designated supervisor. While he could direct actions when [she] was helping out on the travel center side he could not significantly change her conditions of employment, . . .

Having concluded that the supervisor was really a co-worker for purposes of evaluating the employer's liability, the Court then found that the employer's actions were reasonable under the circumstances to prevent further harassment. Prior to the Boxing Day incident, the supervisor's references to her as "baby" or "sweetie" for at most two hours of her shift were insufficiently severe or pervasive to constitute a hostile work environment. Moreover, even if the Boxing Day behavior were unacceptable, it was never repeated because management took steps to ensure that they were never scheduled to work at the same time again and spoke to the supervisor about his unacceptable behavior.

A company may be held liable for co-worker harassment if its response manifests indifference or unreasonableness in light of the facts the employer knew or should have known. A response is generally adequate if it is reasonably calculated to end the harassment. And whether a response is effective is measured not by the extent to which the employer disciplines or punishes the alleged harasser, but rather if the steps taken by the defendant halt the harassment. Evaluation of the response is a fact-specific inquiry and must be done on a case-by-case basis.

While it cannot be certain that the employer would have continued this work schedule, the plaintiff's subsequent resignation rendered that issue irrelevant.

The Court rejected the plaintiff's claim that she was constructively discharged on account of her sex since she could not identify any males who were treated better or hired to replace her.

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.

Franklin County Court of Appeals Affirms $105K in Damages for Same Sex Harassment

Earlier this month, a unanimous Franklin County Court of Appeals affirmed $105,000 in damages for a same sex hostile work environment harassment claim. Tod v. Cincinnati State Technical & Community College, 2011-Ohio-2743. In Tod, the female plaintiff complained about her female manager referring to her "Barbie doll figure," the size of her chest, her figure, as a "bit**" and other similar comments throughout her employment. After 14 months of documenting the problems, she finally reported the problem to human resources and then began to feel retaliated against. She then found another job, but did not report her present employment out of fear of further retaliation. She was then fired from both jobs. The Court rejected the employer's attempt to argue that the harassment was welcomed, not reported in a timely basis, or sufficiently hostile. The Court also rejected the contention that the harassment was not based on sex because the manager's comments were inherently sexual.

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.

EEOC’s Cleveland Office Announces $300K Settlement of Sexual Harassment Lawsuit

On Friday, the EEOC announced that its Cleveland, Ohio district office had settled for $300,000 a sexual harassment lawsuit brought in federal court against Dave's Supermarket, a 13-store grocery chain with 1500 employees. According to the EEOC's press release, a former meat department manager made repeated and unwanted sexual advances to female employees, "and that upper management, aware of his behavior, failed to stop it." In addition, the EEOC alleged that "the sexual harassment included an incident during" where the manager "exposed himself to a newly hired female employee," who complained to upper management "about the incident, but that management did not investigate or discipline" the manager. However, according to the EEOC, the market finally fired the manager after another female employee also complained that he sexually harassed her as well.

In addition to the monetary relief for four female employees, "the two-year consent decree settling the suit provides for mandatory training of all staff on sexual harassment and the company's obligations under Title VII, with an emphasis on the definition of sexual harassment, maintaining a harassment-free workplace, and the laws prohibiting unlawful retaliation. The decree also requires management and/or supervisor accountability concerning sexual harassment and posting of a notice to inform employees about the lawsuit and provide the EEOC's contact information."

Insomniacs may read the full EEOC press release on its website.

In a similar announcement, the Chicago regional office of the EEOC announced a $195,000 settlement of a national origin harassment federal lawsuit (EEOC v. Fireside West, LLC d/b/a Hilton Lisle/Naperville, No. 09-cv-5979) involving an executive chef’s derogatory references to two Hispanic members of the kitchen staff. Like the Cleveland lawsuit, there was also a three-year consent decree.

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 Puts Burden on Employer to Assure that Harassment Stops After Employee’s First Complaint.

Today, the federal Sixth Circuit of Appeals released an unanimous opinion affirming the award of $1,039,504 in compensatory and punitive damages, back pay, and front pay (but which does not yet include court costs or attorney fees) to a female plaintiff who quit her job paying less than $10/hour after only five weeks on the job because she was sexually harassed by co-workers. West v. Tyson Foods, Inc., No. 08-6516 (6^th Cir. 4/16/10). While the amount of the verdict is enough by itself to get an employer's attention, this case is particularly instructive in watching how many times management dropped the ball despite having good policies and procedures in place because apparently no one was enforcing those policies or administering those procedures when it came to this plaintiff. Moreover, the Court found that the employer was on notice of the continuation of the sexual harassment following the employee's first complaint even though she did not complain to her supervisor again before walking off the job permanently. Therefore, this is a particularly instructive case for human resources professionals.

According to the Court's opinion, the plaintiff worked on an assembly line. She attended an employee orientation which covered the employer's sexual harassment policy twice, and was informed that all sexual harassment complaints would be investigated within two weeks and that the investigation would be kept confidential. Nonetheless, in that same first week, she was harassed verbally by a number of co-workers and within two more weeks the harassment escalated to inappropriate touching which put her in tears. When she reported the harassment to the lead lineperson and her supervisor – giving names and examples of the offending the conduct, she was advised not to take it personally because they're like that to all women and it was because she was "hot." When they saw she was not amused, they said they would look into it, asked her not to report this to HR and then later offered her a transfer to a different location. While the plaintiff thought that her supervisor would report this to HR, instead he just watched out for her for a few days. Nonetheless, the harassment continued for the next two weeks, escalated to groping and she stopped going to work after being followed out to the parking lot by the alleged harassers because she feared getting raped. The employer notified her that it was treating her absence as job abandonment and fired her.

The employer refused to give her the last paycheck until she completed an exit interview. At that point, she met with her first HR employee for 45 minutes and recounted in detail how she had been harassed, how she had reported it to her supervisor and how it had continued even after he transferred her to another location. He promised that an investigation would be conducted within two weeks in accordance with company policy. However, instead of specifically alerting someone or investigating it himself, the HR employee passed on his notes (on the exit interview form) to the inbox of an HR clerk and the form was never seen again. Yet another employee quit because of sexual harassment shortly thereafter and, again, no investigation was conducted.

More than a month later, the plaintiff filed a Charge with the EEOC and the employer received it a few weeks later. At that point, an investigation commenced and a search of over 2300 files was made to find the missing exit interview form. When the form could not be found, a cursory investigation was conducted, but it did not include the HR employee who conducted plaintiff's exit interview, or the offending employees. The employer told the EEOC that it had conducted an investigation after the plaintiff's exit interview, that her complaints to her supervisor had been nonspecific and that she asked him not to report it to HR. Apparently, however, the employer disciplined a number of employees for not reporting the plaintiff's concerns to HR, but not the HR employee who conducted her exit interview.

Most of these facts did not come out, however, until litigation commenced at the end of the year and the employees and supervisors testified under oath. The Court refused to exclude evidence of the employer's post-termination investigation on the grounds that it showed how the employer failed to take prompt remedial action and had shown manifest indifference to her concerns (which was relevant to punitive damages). It also instructed the jury that it was permitted to conclude that the employer "lost" the exit interview notes because the information was favorable to the plaintiff. The jury found in favor of the plaintiff and the trial court agreed during post-trial motions.

The Supervisor's Response to the Plaintiff's Complaint Was Ineffective and He Was at Fault for Not Confirming with Her that the Harassment Had Stopped.

The Court of Appeals affirmed because "[v]iewing the evidence in the light most favorable to [the plaintiff], the jury reasonably could have found that [the employer] knew or should have known of the harassment and that [the employer's] response reflected an attitude of permissiveness." In addition,

a reasonable jury could have concluded from the evidence that [her supervisor] failed to take a number of steps that would clearly be necessary to establish a base level of reasonably appropriate corrective action under the circumstances, such as speaking with the specific individuals identified by [the plaintiff], following up with [the plaintiff] regarding whether the harassment was continuing, and reporting the harassment to others in management. [The supervisor's] failure to do these things at any time supports the conclusion that his response was neither prompt nor appropriate.

The Court had little sympathy for the supervisor when he testified that he thought the harassment had stopped because the plaintiff never complained to him again because she could have relied on his promise to "take care of it." This finding alone should trouble employers because other court decisions have protected employers from continuing harassment claims when the plaintiff failed to notify the employer that the initial remedial actions were insufficient. This case puts the burden on the employer to check back with the complaining employee to ensure that the remedial actions were effective.

The Court also rejected the employer's contention that it could not be held liable for the harassment because it did not have knowledge of it. As the court noted: "In the context of sexual harassment claims, actual notice is established by proof that management knew of the harassment." Thus, when the plaintiff told her supervisor, who had authority to receive sexual harassment complaints and to conduct an investigation, the employer was put on notice as well. To the extent that the employer's ignorance was based on the plaintiff's failure to complain a second time to her supervisor about the continuation of the harassment, "management's ignorance was the result of [the employer's] failure to respond appropriately to the original complaint by, for example, investigating the complaint, speaking to the harassers, or checking back with [the plaintiff], and such failure cannot be used as a shield against a claim of sexual harassment."

The Loss of a Key Piece of Evidence Can Be Held Against an Employer.

The Court also found that it was appropriate to instruct the jury that if it:

believe[s] that the [exit interview] notes are missing as the result of the unjustified or careless actions or inactions of [the employer], or any of its agents, then you may, but are not required to, draw an inference that the missing evidence would be favorable to the Plaintiff and adverse to the Defendant.

The Court also rejected the employer's argument that it was an abuse of trial court discretion to permit evidence about the plaintiff's complaint during her exit interview and the employer's post-termination investigation because it was not relevant to her constructive discharge claim and would confuse the jury about when liability attached for the sexual harassment. However, such evidence was relevant to the plaintiff's claim for punitive damages because the employer's post-termination conduct was relevant to its good faith in responding to her complaint. Moreover, considering the significant amount of other evidence about the employer's indifference and the existence of sexual harassment, the prejudicial affect on the jury was found to be minimal.

The Plaintiff's Constructive Discharge Was Foreseeable and Caused by the Employer's Indifference.

The Court also rejected the employer's attack on the plaintiff's constructive discharge claim:

A claim of constructive discharge requires a determination that "working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Held v. Gulf Oil Co., 684 F.2d 427, 432 (6th Cir. 1982). "To determine if there is a constructive discharge, both the employer's intent and the employee's objective feelings must be examined." Logan v. Denny's Inc., 259 F.3d 558, 569 (6th Cir. 2001). An employer's intent can be shown if the employee quitting is a foreseeable consequence of the employer's actions. An employee who quits has "an obligation not to assume the worst, and not to jump to conclusions too fast."

In this case, because there was evidence that the employer tolerated "badgering, harassment, or humiliation" in that at least the plaintiff's supervisor was aware of the alleged harassment and failed to adequately address them. "The jury could have reasonably found that this evidenced a deliberate choice to allow intolerable working conditions." Moreover, the Court found it was foreseeable – even likely that the plaintiff would resign under the circumstances.

It is foreseeable that, after weeks of continuous physical and verbal harassment that goes unaddressed, an employee in [the plaintiff's] position would choose to resign. Further, it cannot be said that [she] "assumed the worst" or "jumped to conclusions." She waited beyond the two-week period from her initial complaint to [her supervisor] within which [the employer's] policy assured her an investigation would be completed, and an employee subject to continuous verbal and physical harassment is not "jumping to conclusions" when she resigns under those conditions.

Punitive Damages Were Appropriate.

Finally, the Court found that punitive damages were appropriate in light of the employer's reckless disregard for the plaintiff's civil rights. She could show that her supervisor and the HR manager who conducted her exit interview acted in the risk of violating her civil rights by not reporting her harassment complaint to HR and not conducting an actual investigation because management training had included anti-harassment training. In addition, the jury could believe that the employer attempted to mislead the EEOC by claiming that it had promptly conducted an investigation after her exit interview instead of waiting several weeks until it received her EEOC Charge. Finally, considering the different versions of events given at trial, the jury could also find that the employer was untruthful.

Although the employer could have avoided punitive damages by showing that it acted in good faith, this requires more than proof that a policy has been adopted. Instead, an employer must prove an effective implementation of its antiharassment policy. In this case,

[A]lthough there was evidence that [the employer] communicated its policy to its employees with some frequency, there was also substantial evidence that the policy was disregarded in its implementation and enforcement. There was evidence of widespread disregard of the policy by employees in engaging in harassment, by supervisors in not reporting to HR incidents of harassment or failing to conduct follow-up investigations, by co-workers in not reporting incidents of harassment, and by HR managers in not investigating reports of harassment. Further, the investigation, when it did take place, was, as the district court stated, "notably flawed." [The employer's] complete failure to follow through, twice, on complaints of harassment by [the plaintiff], followed by a deficient investigation in response to the EEOC's inquiry, does not fulfill "Title VII's objective of motivating employers to detect and deter Title VII violations."

Employers can learn from this decision by reminding its own staff – as well as front line management – of the importance of reporting sexual harassment concerns to HR and then promptly investigating them instead of hoping that they will just go away on their own. When even a new employee making just above minimum wage can win in excess of a million dollars after working just five weeks, it is time for production and HR supervisors to understand how important it is to report and fully investigate sexual harassment complaints.

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: Judgment for Employer is Affirmed on Sexual Harassment Claim When Investigation and Termination Was Handled Properly.

This morning, the Sixth Circuit Court of Appeals affirmed summary judgment in favor of a hospitality industry employer on a sexual harassment claim when the employer properly investigated and terminated the employee. Balding-Margolis v. Cleveland Arcade d/b/a Hyatt Regency Cleveland, No. 09-3017 (11/10/09). Retired Justice Sandra Day O’Connor was part of the panel which issued the decision. The plaintiff was a long-time waitress who was found to have violated many cash-handling procedures over a period of time, including rules against increasing the amount of her tip on a customer’s credit card payment. After she was fired, she alleged that, among other things, she had been subjected to a hostile work environment and treated differently on account of her age and sex.

According to the Court’s decision, when the plaintiff was hired, she was given copies of several policies, including the employer’s sexual harassment policy (which permitted her to bring concerns to her manager, the Director of Human Resources and a national toll-free hotline), and that she could be immediately terminated for violating cash-handling procedures. Her employment was also governed by a bargaining agreement with the UNITE HERE union. “[T]he Cash Handling Rules generally prohibited an employee from altering a guest check; required that an employee follow proper procedures; and prohibited an employee from handling checks, cash, and credit cards in an improper manner. The restrictions on altering a guest check included prohibitions on changing the tip amount or closing out a check that differed in any way from the customer’s signed receipt.” Notwithstanding these rules, and the fact that she was a trainer who oriented new employees about these rules, “[i]n October 2005, she was issued a warning when two guests left the restaurant without providing a valid form of payment. In January 2006, [plaintiff] received another warning because of a large cash variance following her shift. In May 2006, [plaintiff] received a third warning—a “Final Written Warning”—for adding an additional eighteen-percent gratuity without the customer’s permission.”

A year later, her supervisor noticed that her credit card tips equaled almost 1/3 of her receipts for the day (not including cash tips). “The high tips-to-sales ratio was suspicious and caused [her supervisor] to audit [plaintiff’s] transactions that day. [He] concluded that there were problems with one-third of [her] sales, including receipts for discounted meals that lacked the required discount coupons; ten checks without a signed copy of the room charge, credit card, or other documentation; and two unsigned receipts with listed tips that exceeded the actual food-sales amount. [He] conducted an audit of the two workers with whom [she] had been serving that day but found no similar discrepancies.” He then went back and audited the prior few weeks and involved the Controller and Human Resources Manager, confirmed that there consistently were similar violations and decided to terminate her employment. She “was given the opportunity to explain the various discrepancies, but she failed to do so.”

During the termination meeting, [plaintiff] made general complaints regarding the way that [her supervisor] had administered the staff, but she made no complaints of sex- or age-based discrimination or harassment. Following her termination, Hyatt continued auditing [her] receipts for five dates in April 2007, revealing additional discrepancies. Because [she] had alleged during her termination meeting that [her supervisor] was attempting to get her fired and that he had papered her file and/or stolen the supporting documentation that she needed to explain the discrepancies, Hyatt conducted an audit of [her] transactions during a two week period prior to [his] employment at Hyatt. That audit revealed similar cash-handling problems. Hyatt also conducted an audit of all the checks closed out by the servers on April 25, May 1 through 4, and May 8, 2007, and found that none of them had discrepancies or cash-handling violations similar to [her] discrepancies.

Plaintiff then filed an EEOC Charge and union grievance alleging sexual harassment and age discrimination. Hyatt conducted an investigation, interviewed co-workers and did not find any basis for her claims. She then filed suit in federal court.

The Court concluded that she could not satisfy a prima facie case of age discrimination because she could not show that she was replaced by a substantially younger employee or that younger employees were treated more favorably. A bartender was not her “replacement” because he had already worked in the restaurant part-time before her termination. A “person is not replaced when another employee is assigned to perform the plaintiff’s duties in addition to other duties, or when the work is redistributed among other existing employees already performing related work. A person is replaced only when another employee is hired or reassigned to perform the plaintiff’s duties.”

She also could not show that others were treated more favorably because their alleged violations were not the same.

She claims that the younger employees’ practice of marrying alcohol and their admitted but unproven failure to turn in receipts were sufficiently serious to merit comparison to the disciplinary violation that led to her termination—the cash-handling-policy violation and misappropriation of funds. . . . This is not the case. Marrying alcohol may be a violation of Ohio law, but [she] never engaged in the practice and was never disciplined for not participating. The fact that [she] was terminated for engaging in an illegal practice does not automatically make marrying alcohol and [her] infraction comparable. Misappropriation of funds and marrying alcohol are different circumstances involving distinguishable conduct.

Plaintiff also brought pay discrimination claims because trainers at non-Cleveland Hyatt hotels were paid more than her... However, she presented no evidence that she was paid less than co-workers outside of her protected class in Cleveland “‘for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. . . . . [She] concedes that she was the only server-trainer in Cleveland, and she has presented no evidence that other non-protected employees held “substantially equal” jobs and were paid more. . . . . . [She] further concedes that those employees who were paid a higher rate had greater seniority and were being paid pursuant to the provisions of the CBA.” She also presented no evidence about the age or sex of the non-Cleveland trainers, even if they could be considered as part of the same establishment.

The Court found that the plaintiff presented a prima facie case of sexual harassment, especially based on two allegations of improper physical contact and her supervisor’s daily bragging about his sexual life:

(1) The Director of Sexual “once invited [her] to lie down in his room;”
(2) The Security Director once told [her] that she was attractive;”
(3) The Director Security “once hit [her] on the buttocks and “untied [her] apron, which was tied in the back;”
(4) Her supervisor “once commented that he had a large penis;”
(5) Her supervisor “once told [her] that he had sex with one of her customers, [her] to provide a free meal to that customer, and then “put his hands . . . against the wall and dry humped it or did a pelvic thrust against it,” stating “I did her, I did her,”;
(6) Her supervisor “had once asked a female line cook to do the “boobie dance,” which involved putting the cook’s “hands underneath her chest” and moving them “up and down” and shaking “her hips;”
(7) Her supervisor “repeatedly bragged to [her] about the day that he had sexual intercourse with a fellow Hyatt server and [her] female co-worker at the Hyatt;”
(8) Her supervisor “repeatedly talked to [her] ‘about a sexual relationship he had with a former co-worker, how that co-worker was pregnant, how [he] needed to mail that pregnant woman a check so that the woman can pay for an abortion,” and how he wanted [plaintiff] to put [his] check in the mail.”

In light of her evidence of sexual harassment, Hyatt would be liable for the supervisor’s actions unless it could show by a preponderance of the evidence “that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior” and that [the plaintiff] ‘unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.’ . . . Generally, an employer satisfies the first part of this two-part standard when it has promulgated and enforced a sexual harassment policy.”

The Court found that Hyatt had an effective sexual-harassment reporting policy and that the plaintiff failed “to take advantage of Hyatt’s corrective policy was unreasonable.”

Although her post-deposition affidavit states that she complained to Hyatt management verbally over thirty times, [her] deposition testimony indicates that she never complained to anyone concerning [her supervisor’s] harassment and discriminatory conduct other than to [her supervisor] himself. Her deposition testimony further establishes that she never complained to anyone about [the Security Director’s] conduct. [Plaintiff] failed to make these complaints notwithstanding that she testified that she was aware of the open-door policy, the complaint procedure, and the fact that if her immediate supervisor failed to act on her complaint she could go elsewhere. [She] clearly took advantage of the complaint process with regard to a variety of run-of-the-mill matters, but she failed to take advantage of the policies when it mattered most.

Likewise, the Court rejected her retaliation claim. She failed to testify in her deposition about any instances of complaining to management about any sex or age discrimination, even though she complained in writing and verbally about a number of other matters. In order to invoke the protections of federal or state law, an employee needs to be direct in complaining about discrimination:

a vague charge of discrimination in an internal letter or memorandum is insufficient to constitute opposition to an unlawful employment practice. An employee may not invoke the protections of the Act by making a vague charge of discrimination. Otherwise, every adverse employment decision by an employer would be subject to challenge under either state or federal civil rights legislation simply by an employee inserting a charge of discrimination.

In any event, the Court also concluded that even if the plaintiff could satisfy her prima facie case, the employer had shown a legitimate, nondiscriminatory and non-retaliatory reason for firing her.

Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/09a0732n-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.

EEOC: Taco Bell to Pay $350K to Two Teenaged Employees Who Were Raped by Store Manager at Work.

On Friday, the EEOC announced that it had settled a sexual harassment lawsuit brought against Taco Bell alleging that two minor employees had been raped by a store manager in Memphis. One of the girls was raped on her first day of work and another five months earlier. The manager was ultimately criminally charged, pled guilty to the rapes in 2009 and was sentenced to two eight-year terms as well as permanent designation as a sex offender under Tennessee law. The EEOC’s suit (Civil Action No. 2:07-cv-02579, filed in the U.S. District Court for the Western District of Tennessee at Memphis) alleged violation of Title VII’s prohibition against sexual harassment.

Under the terms of the consent decree, “ Taco Bell will pay a total of $350,000” and “will maintain a written policy against sexual harassment and will widely distribute it to all employees” in that region “within 30 days of the entry of the decree. The company will also conduct anti-discrimination training and posting of anti-discrimination notices.”

Insomniacs can read the full press release at http://www.eeoc.gov/press/8-28-09a.html.

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.

Chicago Dentist to Pay $462,500 in Consent Decree to Settle EEOC Harassment and Retaliation Lawsuit

Yesterday, the EEOC announced that a “Chicago dental practice will pay $462,500 to settle a class sexual and religious harassment and retaliation lawsuit” it filed in September 2007 in federal court which alleged that “James L. Orrington, D.M.D., Ltd. discriminated against 18 employees by subjecting them to sexual harassment, including sexual propositions, comments and touching; forcing them to engage in Scientology religious practices and learn about Scientology as conditions of their employment; and/or retaliating against employees who complained about the sexual or religious harassment.” EEOC et al. v. James L. Orrington D.M.D., Ltd., No. 07 C 5317. “The consent decree resolving the case was entered by the court [yesterday] morning.”

The EEOC also announced that “[i]n addition to requiring that Orrington pay monetary relief, the three-year consent decree resolving the case enjoins Orrington from engaging in sexual or religious discrimination and prohibits the firm from conditioning any terms or conditions of employment on complying with the religious teachings or practices of Scientology or attending seminars regarding Scientology. The consent decree also requires that Orrington contract with an outside representative to receive and investigate complaints of sexual discrimination and religious discrimination; adopt and distribute a policy against sexual harassment, religious discrimination and harassment, and retaliation; provide training to employees; submit periodic reports to the EEOC about any complaints of sexual harassment, religious discrimination or harassment, or retaliation; and post a notice at its facility regarding the outcome of this lawsuit.

Insomniacs can read the full press release at

EEOC Announces $435K Settlement With Jewelry Store When HR Manager Ignored Sexual Harassment of Three Female Employees.

Last week the EEOC announced that “Fred Meyer Stores, Inc. . . . will pay $485,000 to three female victims of sexual harassment and retaliation to settle a lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC) [at] (EEOC, et. al. v. Fred Meyer Stores, Inc. No. CV08-0208 HA, United States District Court of Oregon) [based on], the company’s [alleged] practice of harassing female employees [in] 2004 through 2005 at the Fred Meyer Oregon City store. The EEOC says the sexually hostile work environment started . . . with illegal conduct by the store director and operations manager. The EEOC further asserted in the litigation that the store director and operations manager repeatedly subjected females to graphic sexual discussions, unwanted touching, and requests for sexual favors.”

In addition, the EEOC’s lawsuit alleged that the store “condoned and accepted this sexually harass­ing behavior, and the [EEOC] obtained testimony from the company’s human resources manager who witnessed the harassing conduct on several occasions and simply walked away. According to the EEOC, the same human resources manager failed to take appropriate action against the store director or operations manager. In addition, the EEOC charged that the company retaliated against the female employees when they complained about the sexual harassment.”

“Under a consent decree filed with the federal court, [the store] agreed to pay $485,000 to the three women who came forward during the EEOC’s lawsuit. The company also agreed to provide anti-discrimination training for the owner, managers, supervisors and employees; establish policies and procedures to address sexual harassment issues; provide information to the EEOC concerning any future discrimination complaints; and allow EEOC to monitor the work site for the next two years."

EEOC Regional Attorney William Tamayo explained, “The evidence in this litigation pointed to an alarming lack of recent workplace, anti-discrimination training for the high level managers involved in this case. It is unfortunate that a sophisticated employer like Fred Meyer Stores failed to recognize the importance of such training for its managers.”

Insomniacs can read the EEOC’s full press release at http://www.eeoc.gov/press/12-11-08a.html.

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.