Labor & Employment Law Daily Comments, teasing about security officer’s ‘large breasts’ not based on sex
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Tuesday, June 16, 2020

Comments, teasing about security officer’s ‘large breasts’ not based on sex

By Kathleen Kapusta, J.D.

Under controlling case law, said the court, the fact that the employee was harassed about her breast size was not enough to show the harassment was “based on sex.”

A security officer for a regional water and sewer department, who alleged her supervisor referred to her as “the queen of FMLA”—she took intermittent leave for asthma throughout her employment—and who also claimed she was subjected to ridicule and harassment based on the size of her breasts failed to show the comments about her breasts amounted to harassment “obviously based on her sex,” a federal district court in Michigan ruled, granting summary judgment against her Title VII and state-law hostile work environment claim. The comments did not clearly suggest either sexual desire or anti-woman animus but more a problem with her size, the court explained. Nor was there any evidence her supervisors knew she meant to take FMLA leave for breast reduction surgery shortly before she was terminated for falsifying an accident report and thus her FMLA retaliation claim also failed (Nathan v. Great Lakes Water Authority, June 9, Borman, P.).

Queen of FMLA. The employee started working for the Detroit Water and Sewerage Department (DWSD) in 2004. Although she resigned in 2015 when Great Lakes Water Authority (GLWA) took over, it hired her the next day and she continued to work with many of the same coworkers and supervisors. She claimed that during her tenure with the company, one supervisor called her “the queen of the FMLA” because she took intermittent leave for her asthma and that same supervisor and routinely denied her leave, even when she was experiencing shortness of breath and requested leave to go home or to the hospital.

Droopy breasts. She also claimed that throughout her employment she was ridiculed and harassed based on the size of her breasts. Not only did coworkers and supervisors allegedly comment that her breasts were so big, she looked like she could trip over them, she looked sloppy in her uniform, and her breasts looked like they were drooping, she alleged that on one occasion, the chief security officer sent a supervisor to check and see if she was wearing a bra. Further, her second-level supervisor once purportedly told her she needed a more supportive bra.

For his part, the supervisor claimed he told her that her uniform was “deplorable and didn’t meet the standards of the operation” because she had spilled food on herself, had holes in the tops of her un-shined shoes, and her vest did not fit correctly. He was, he contended, concerned about the vest because it extended below her weapons making it impossible for her to reach them in an emergency.

Breast reduction surgery. As a result of years of teasing, the employee, in 2017, decided to get breast reduction surgery. She believed she had been approved for FMLA leave from October 30th until November 17th but no one at GLWA was notified of her leave and she did not tell her supervisors because she did not want them to know “what was going on.”

Termination. On October 29, her last shift before the start of her leave, she drove a GLWA van while conducting site checks of the plant. At one point, she informed a supervisor that the van was leaking water or antifreeze and that it was overheating. She reported a second leak sometime later. When her replacement arrived, he noticed damage to the front of the van. After an investigation revealed that the employee had been in a single vehicle accident that she failed to report, she was suspended and then terminated for falsifying her incident report.

Hostile work environment. The employee subsequently sued, asserting Title VII and state-law claims of hostile work environment sexual harassment and retaliation (because she filed for bankruptcy during the pendency of this case, the Chapter 7 Trustee for her bankruptcy estate was substituted in her place). She alleged that the comments about her breasts amounted to harassment “obviously based on her sex,” because comments about breasts are direct comments about sex. But the court found this argument “difficult to square with the case law, which requires harassment born out of either sexual desire or general animus—not just the use of sex-specific terms.”

And here, rather than suggesting sexual desire or anti-woman animus, the comments about her breasts drooping, her bra being unsupportive, and her breasts being so large she could trip over them more suggested a problem with the employee’s size, said the court, noting that a male employee was also asked about the fit of his shirt because of this body size. Further, because two of the alleged harassers were women, the Sixth Circuit’s 2012 Wasek v. Arrow Energy Servs., Inc., decision required proof they were homosexual, had a general hostility to women in the workplace, or treated men more favorably, which the employee did not offer. Accordingly, she failed to show the harassment was because of her sex.

Unreasonable interference. As to whether the alleged harassment unreasonably interfered with her work performance, there evidence that one of the employee’s reasons for getting breast reduction surgery was because she was tired of the teasing. But there was also evidence that much of the teasing was about taking “too much” FMLA leave. Nor was it clear how frequent the comments about her breasts occurred, said the court, noting they were not physically threatening and there was no evidence they impacted her work performance. Accordingly, GLWA was entitled to summary judgment on this claim.

Employer liability. Turning to whether GLWA was liable for the alleged harassment, the court noted that two supervisors purportedly participated in the teasing. Because she did not allege the harassment culminated in a tangible employment action, the court addressed the employer’s affirmative defense. Although it had a sexual harassment policy, the employee did not file a formal complaint. She did, however, inform the HR manager about the comments and teasing and after an investigation, the HR manager spoke to the chief security officer and a supervisor about how to better communicate with the employee. Given that the employee’s complaint led to an effort to correct the behavior, her informal complaint was reasonable, said the court, finding some basis for employer liability.

As to the alleged harassment by her coworkers, her complaints to the HR manager, who in turn notified her supervisors, provided sufficient notice of the alleged harassment. Further, a letter from a coworker detailing a series of complaints she had made to him, which promoted an investigation of the employee, also provided notice of the harassment. And while the employer implemented prompt and appropriate corrective action regarding the employee’s complaints to HR, it did not do so after her coworker’s letter. Instead, there was an investigation into whether he felt comfortable working with the employee. Thus a jury could find it failed to implement prompt and corrective action. However, because she failed to establish fact issues on the other two elements of the claim, the employer was entitled to summary judgement.

Title VII retaliation. At issue in her Title VII retaliation claim was whether there was sufficient evidence of causation between her complaints to HR and her termination. Although the record was vague as to exactly when she complained, it was before the incident with the van, observed the court, which suggested that the incident was an intervening cause. Nor was there any evidence that another officer had falsified an incident report and was not terminated.

Moreover, even if she could establish causation, she failed to show pretext. While she argued that she did not know she had been in an accident and therefore her statement on the incident report was not false, her belief she was not in an accident was irrelevant. There was ample evidence the employer investigated the damage to the van, determined that she had been the only driver, and that she had hit or driven over a railroad tie or cone, which she likely noticed. Because there was no evidence to the contrary, it had a reasonable belief the incident report, which did not mention an accident, was false.

FMLA retaliation. Finally, addressing her FMLA retaliation claim, the court noted there was no evidence anyone at GLWA knew the employee meant to take FMLA leave for her breast reduction surgery. Thus, the employer had no notice she was exercising her FMLA rights. And because none of her supervisors knew she was on FMLA leave, there was no credible evidence of causation even though her leave coincided with her termination. Nor could she show the stated reason for her suspension and termination was pretexual, said the court, again citing the honest-belief rule. Thus this claim was also dismissed on summary judgment.

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