Employment Law Daily Customer’s harassment of teenage convenience store worker didn’t create hostile environment
Thursday, April 5, 2018

Customer’s harassment of teenage convenience store worker didn’t create hostile environment

By Marjorie Johnson, J.D.

An 18-year-old convenience store employee who was fired after a male customer complained that she burned him with a cigarette failed to revive her Title VII claim that he had been sexually harassing her. Summary judgment was properly granted against the hostile work environment claim because his conduct was not sufficiently severe (he never touched her and she never complained) and liability could not be imputed. The Eighth Circuit also upheld dismissal of her state law and Title VII retaliation claims as time-barred and affirmed the exclusion of evidence of her prior sexual assault (Hales v. Casey’s Marketing Co., April 3, 2018, Wollman, R.).

Sexually suggestive customer. The employee was hired in April 2013. About two months later, while working the overnight shift at a store where she wasn’t usually assigned, she was approached by a male customer. He asked her if she had a boyfriend and if she worked there often, and commented about her appearance. He also told her where he lived and worked, mentioned that he had a dashboard camera, and (using a sexually suggestive tone) said that he liked to film things.

Followed outside. Though two police officers entered the store, she didn’t express any concerns to them. After they left, she went outside to smoke a cigarette, while asking a coworker to keep an eye on her since a customer had been “hitting on her.” The customer followed her, blocked the store entrance, and said that “his girlfriend calls him when it’s raining outside to tell [him] how wet she is, [but that] that’s his job.”

She told him to “back off” and he replied, “What are you going to do about it?” She then extended her cigarette towards him to try to make him move away, but he instead stepped toward her and burned his arm. They both reentered the store, but she did not call the police or report the incident to a supervisor.

Complaint leads to firing. He returned the next day and reported that she had burned him with a cigarette. The manager reviewed the surveillance tapes and informed the manager of her usual store about the incident. When she reported for her next shift, she was asked if “anything out of the ordinary had happened” while working at the other store. She acknowledged that she had burned a customer with her cigarette, but said she did so to defend herself. She was then fired.

Administrative charges. She filed complaints with the Iowa Civil Rights Commission (ICRC), which were cross-filed with the EEOC, asserting discrimination and retaliation. After she requested separate administrative releases, the ICRC issued her a dismissal letter on June 4, 2014. The EEOC then mailed her a dismissal and Notice of Rights on her retaliation claim on September 24, 2014, and on her HWE claim on October 8, 2014. It also sent copies of the letter to her father at the same residential address. She filed this lawsuit on January 7, 2015.

Lower court proceedings. The district court dismissed her ICRA claim as time-barred because it was filed outside the 90-day statutory period. It also excluded as irrelevant evidence that she had been previously sexually assaulted and underwent therapy. Finally, it granted the defendant’s motion for summary judgment, finding that she failed to show she was subjected to sufficiently severe conduct or that the defendant could be liable, and that her retaliation claim was time-barred since it was filed outside the EEOC’s 90-day limitation period.

EEOC proceedings did not toll ICRA claim. The Eighth Circuit rejected the employee’s assertion that the 90-day filing period should have been equitably tolled since the EEOC’s right-to-sue letter was not issued until after the ICRA statutory filing period had expired. She argued that if the ICRA filing deadline was not equitably tolled, she would be estopped from bringing her federal claim in federal court because both claims arose from a common nucleus of fact. However, the Supreme Court rejected a similar argument in Johnson v. Railway Express Agency, Inc., holding that the filing of a Title VII claim with the EEOC does not toll the statute of limitations in a Section 1981 action. The Johnson Court explained that a plaintiff should file suit and then seek to stay proceedings until the administrative efforts and voluntary compliance have been completed.

Customer’s conduct not severe. The employee also failed to revive her hostile work environment claim because the customer’s isolated conduct was not sufficiently severe to meet the demanding “extremely serious” standard. He never touched or overtly threatened her. Moreover, though she claimed she felt threatened, she left the store alone to have a cigarette, followed him back into the store, and did not report the incident to the police or to a supervisor.

No liability. Even if the customer had created a hostile environment, liability could not be imputed to the employer because the employee failed to show that it knew of his harassing conduct but failed to take appropriate remedial action. When it received the first complaint from the other female workers, it took immediate action, telling the customer that he would be banned from the store and that the police would be called. Moreover, it did not learn about the incident with the plaintiff until the customer himself reported it.

Prior sexual assault. The district court also did not abuse its discretion in excluding as irrelevant evidence of the employee’s prior sexual assault and related therapy, despite her assertion that the evidence would have tended to show that she acted reasonably in the circumstances. Her reliance on Oncale in arguing that the “social context” should be considered was misplaced, as that decision did not require courts to delve into a plaintiff’s personal background.

Retaliation claim time-barred. Finally, the appeals court rejected her assertion that her Title VII retaliation claim should not have been dismissed as time-barred since she did not receive the right-to-sue notice until several months after it was mailed. Though she claimed that she did not receive the notice until several months after the EEOC mailed it, she offered no evidence to support this claim, and did not explain why she filed her suit six months before that date.

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