Kentucky Employment Law Blog

Sexual Harassment and Retaliation Verdicts Against AutoZone Affirmed by Sixth Circuit

The Sixth Circuit has affirmed jury verdicts on behalf of three former employees on their sexual harassment and retaliation claims.  Perry v. AutoZone Stores, Inc. (June 22, 2015). 

Plaintiff Shana Perry was sexually harassed by her supervisor Mark DeHaan.  She reported the harassment, AutoZone began an internal investigation, and, during the investigation, plaintiffs Damon Harper and Daryl Quinney made statements corroborating Perry's allegations. All three were subsequently fired.  

The jury awarded Perry $150,000 in damages for emotional distress and $400,000 in punitive damages against AutoZone; Harper was awarded $60,000 for lost wages and $100,000 in emotional distress damages; Quinney was awarded $100,000 in emotional distress damages and $23,300 for lost wages. See Verdict Form. The district judge, the late John G. Heyburn, reduced the punitive damages award to comply with Title VII's statutory cap of $300,000.  

The Sixth Circuit's opinion was per curiam and issued on behalf of Circuit Judges Martha Daughtrey, Deborah Cook and Eric Clay.  Perhaps the only surprise is that the case was argued on November 18, 2014; some would infer a more extensive analysis would come after such a delay.  

The plaintiffs were represented by Rheanne Falkner and Charles Miller of the Louisville firm of Miller & Falkner; they were lauded by Judge Heyburn for their "considerable skill and determination."

Robert L. Abell
www.RobertAbellLaw.com

 

The Ripples from Vance v. Ball State University

In Vance v. Ball State University, the Supreme Court limited who could be a sexual harassment victim's supervisor, a limitation that, in turn, makes it markedly tougher for victims of sexual harassment to establish their employer's liability.  Bryce Covert at ThinkProgress identifies 43 sexual harassment cases, some with offensive and outrageous conduct involved, that have been thrown out of federal court since and as a result of this holding by the Supreme Court: 43 Sexual Harassment Cases That Were Thrown Out Because of One Supreme Court Case. 

Robert L. Abell
www.RobertAbellLaw.com

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Can Walking Off the Job Be Protected Activity?

Can walking off the job be protected activity and used as a basis for a retaliation claim?  The Sixth Circuit suggested that it could recently in Wasek v. Arrow Energy, No 10-2418 (June 20, 2012).

As reported in an earlier post, Is A Transfer That Limits Future Career Prospects an Adverse Employment Action?, Wasek worked as a derrick hand on an oil rig in Pennsylvania. He was the subject of repugnant and outrageous conduct by a co-worker that he believed reasonably constituted same-sex sexual harassment.  He reported the conduct in accordance with Arrow's procedures but got nowhere other than to be told to stop "whining." In frustration Wasek left the job site. He later claimed Arrow had retaliated against him, a claim that required him to show that he had engaged in protected activity.

The biggest problem for Wasek's claim was that he had abruptly walked off the job, an action which caused Arrow to ban him from further work for it in Pennsylvania. But could Wasek's walking off the job be protected activity the Sixth Circuit considered:

Leaving the work site could be protected activity if leaving itself were a "complaint" about sexual harassment.  But this would require a fact-intensive inquiry into whether or not leaving the work site was reasonable under the circumstances. 

Alas, Wasek did not argue that walking off the job was protected activity and the Sixth Circuit declined to do so for him, observing "at this stage in the process, it would be improper to create arguments for Wasek in order to reach this issue." And so the Court did not; but it did affirm summary judgment in favor of Arrow.

The Sixth Circuit's suggestion that walking off the job could constitute protected activity is similar to the holdings in other cases that policy violations can, nevertheless, also constitute protected activity: Can A Policy Violation Also be Protected Activity?

Robert L. Abell
www.RobertAbellLaw.com 

Is A Transfer That Limits Future Career Prospects A Materially Adverse Employment Action?

Is a transfer that limits future career prospects a materially adverse employment action?  The answer is "yes" according to the Sixth Circuit's decision in Wasek v. Arrow Energy, No 10-2418 (June 20, 2012). 

Wasek worked for Arrow Energy as a derrick hand at an oil rig in Pennsylvania.  At the time, nine of Arrow's thirteen rigs were located in Pennsylvania, the others being in Michigan, West Virginia and New York. The plaintiff, Harold Wasek, after being warned not to, complained about a same-sex sexual harassment directed at him by a co-worker. As a result, he was reassigned to a rig in Michigan. He claimed retaliation and argued that the reassignment to Michigan was a materially adverse employment action. The Sixth Circuit agreed and in an opinion written by District Judge Amul Thapar explained as follows:

... the ban was materially adverse to Wasek's employment because nine of Arrow Energy's thirteen rigs are in Pennsylvania.  Wasek's future employment options were severely limited.  See Barton v. Zimmer, 662 F3d 448, 454 (7th Cir. 2011)(noting that adverse employment actions include transfers that reduce future career prospects).

Robert L. Abell
www.RobertAbellLaw.com 

Doctor Subjected to Sexual Harassment and Hostile Work Environment by Clinic Owner, Fourth Circuit Rules

A doctor employed at a medical clinic could show that she was subjected to sexual harassment and hostile work environment, the Fourth Circuit Court of Appeals recently ruled in EEOC v. Fairbrook Medical Clinic, No. 09-1610 (June 18, 2010).  Characterizing the facts as indicating "a series of graphic remarks of a highly personal nature directed at a female employee by the sole owner of an establishment," the court reversed a summary judgment and remanded the case for trial.

The case highlights and illustrates a number of common arguments raised by employers in sexual harassment cases including the following:

• The clinic claimed that there was no discrimination based on sex because the doctor owner "was a generally crude person who made vulgar comments to men and women alike." The court rejected this argument and noted that "the use of "sex-specific and derogatory terms" indicates intent to demean and discriminate against women."

 

• The clinic had a relaxed and at times crude work environment in which employees including plaintiff made off-color jokes and this precludes any finding of a hostile work environment. The court rejected this argument stating that "there is a difference between "generalized" statements that pollute the work environment and "personal gender-based remarks" that single out individuals for ridicule."

 

• The doctor cannot claim that a hostile work environment existed because she occasionally made off-color remarks herself. The court answered: "a plaintiff's claim is not defeated solely because she engages in some crude behavior. ... Plaintiff's use of foul language or sexual innuendo in a consensual setting does not waive her legal protections against unwelcome harassment."

 

• There was no hostile work environment because the doctor did not have to miss any work and her job performance was not impaired.The court answered: "The fact that a plaintiff continued to work under difficult circumstances is to her credit, not the harasser's. ... The critical inquiry is not whether work has been impaired, but whether working conditions have been discriminatorily altered."
  
  Robert L. Abell
  www.RobertAbellLaw.com

Nashville Retaliation Victim Wins $1.5 Million Verdict

Vicky Crawford, a former 30 year employee of the Nashville Metrol schools, whom the Supreme Court ruled last year could pursue her retaliation suit after being fired because she disclosed prior instances of sexual harassment during an investigation, won a $1.5 million verdict from a federal jury on Monday reports The Tennessean, "Nashville Schools Employee Who Was Fired Is Awarded $1.5 Million." 

The Supreme Court's decision was discussed in a post last year:  "Retaliation Protections Applicable to Employee Providing Information In Internal Investigation."

Robert L. Abell
www.RobertAbellLaw.com

Sexual Harassment Liability: Purposeful Ignorance Is Not Reasonable Care

Sexual harassment liability for an employer requires that the employer either knew or, in the exercise of reasonable care, should have known about the harassment and failed to take remedial action.  In Duch v. Jakubek, No 07-3503 (decided December 4, 2009), the Second Circuit decided a case where a supervisor attempted to remain purposefully ignorant of sexual harassment occurring in the workplace.

Duch was sexually harassed by a co-worker, Kohn, including sexual advances involving physical contact, sexually graphic language.  The matter came to the attention of their supervisor, Jakubek, who told Kohn to "cut it out, grow up" asked Duch what had happened between the two. When Duch responded, "I can't talk about it," Kohn replied, "That's good because I don't want to know what happened." Duch later sued for sexual harassment. 

The employer defended that Duch had not reported the sexual harassment, although it had offered a reasonable avenue of complaint.  The Second Circuit agreed that it had offered a reasonable avenue of complaint but, nonetheless, could be held liable based on the Jakubek's efforts to avoid learning the nature of the issue between Duch and Kohn stating as follows:

when an employee's complaint raises the specter of sexual harassment, a supervisor's purposeful ignorance of the nature of the problem -- as Jakubek is alleged to have displayed -- will not shield an employer from liability under Title VII. 

The court then turned to whether the company had acted promptly to remediate the situation and ruled that it was spurred to action three months after Jakubek first learned of the harassment, which a jury could find too slow.

Robert L. Abell
www.RobertAbellLaw.com

Racial and Sexual Harassment Results in $1 Million Plus Judgment Against Whirlpool

Racial and sexual harassment creating a hostile work environment has resulted in a $1 million plus judgment against Whirlpool Corporation.  Federal district judge John T. Nixon found that a hostile work environment was created based on the following:

Baker frequently directed songs and explicit commentary at Freeman. While isolated
episodes of teasing or sexual comments do not rise to the level of a hostile work environment,
the Court finds that Baker harassed Freeman on an almost daily basis, both during breaks and
while he worked in close proximity to her on the Line. As the months wore on, Baker’s
harassment became more and more threatening, as he began mumbling and pointing at Freeman and eventually assaulted her.

Whirlpool's argument that the conduct was not sex-based and therefore not illegal sex discrimination:

Non-sexually explicit harassing behavior that is “directed at women and
motivated by discriminatory animus against women satisfies the ‘based on sex’ requirement.”Id. Multiple witnesses describe Baker as mumbling and staring at Freeman and her co-worker Chinica Lillard, also African-American, preceding the assault. After punching Freeman, Baker verbally threatened Lillard as well and threw a pipe at her. The Court finds that the assault was the final harassing act in a campaign of harassment that Baker targeted at Freeman because of her sex. Any reasonable person would find Freeman’s working environment to be hostile and abusive.

The Court entered a judgment in excess of $1 million in Freeman's favor.  You can read a copy of the Court's opinion, Freeman v. Whirlpool Corporation.

Robert L. Abell
www.RobertAbellLaw.com

When Does Sexual Harassment Become Unlawful?

To rise to the level of an unlawful hostile work environment based on sex the gender-based harassment must be severe or pervasive.  The Fourth Circuit Court of Appeals in EEOC v. Central Wholesalers, No 08-1181 (July 24, 2009), recently described a hostile work environment where it could be found that the sexual harassment was severe or pervasive:

"We conclude that a reasonable jury could find that the gender-based harassment was objectively severe or pervasive.  The evidence shows that Mike, Tony, and Green all regularly referred to women as b***hes.  Moreover, DaBay called Medley a b***h a number of times during the November 10 incident.  In addition, Mike -- whose cubicle was right next to Medley's -- had a Playboy calendar on his desk, kept Playboy magazines in his cubicle, hung a Playboy poster on his wall, watched pornography on his computer in Medley's presence, used a pornographic screensaver depicting partially naked women, and placed the screwdriver in the Halloween decoration in a sexual manner more than once.  This evidence is certainly sufficient to create a triable issue on whether the gender-based harassment was objectively severe or pervasive."

Robert L. Abell
www.RobertAbellLaw.com