Employment Law Daily Delay in reporting supervisor’s misconduct, Walmart’s prompt action, doom sexual harassment claim
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Wednesday, July 31, 2019

Delay in reporting supervisor’s misconduct, Walmart’s prompt action, doom sexual harassment claim

By Harold S. Berman J.D.

Affirming summary judgment against the employee’s Title VII claim, the court found Walmart proved a Faragher-Ellerth defense as it thoroughly investigated and corrected the alleged harassment.

A former Walmart employee who failed to report her supervisor’s sexual harassment for several months, and whose complaint was promptly investigated by the retail giant when she finally did report it, could not claim hostile work environment sexual harassment under Title VII, the Seventh Circuit ruled. Affirming the dismissal of her claim on summary judgment, the appeals court found Walmart investigated the employee’s complaints and counseled the supervisor even though the claims remained unsubstantiated. Further, the employee unreasonably delayed reporting the harassment even though Walmart provided her several options to do so (Hunt v. Wal-Mart Stores, Inc., July 26, 2019, Bauer, J.).

Alleged harassment. The employee worked the overnight shift in the electronics department of a Walmart store. Walmart had twice previously disciplined her male supervisor after a female coworker complained of sexual harassment.

The employee met her supervisor for the first time in May 2013, when he asked her why she was wearing a particular shirt, stated that he could see her breasts, and commented on the proportion of her breasts to her body. A month later, the supervisor stood close to her and again commented about her breasts. Although the employee told him his comments were inappropriate and walked away, he followed her, and told her he wanted to shower with her and feel her breasts.

Written coaching. In late June, when the employee showed him a picture on her phone of a fallen tree to explain that bad weather caused her to miss work the previous day, he took the phone from her hand and indicated he was looking through it for naked photos. After the employee asked him to stop, the supervisor told her he would not excuse her absence, and again asked to see her breasts. He made similar offensive remarks to her in late August and mid-September, and asked to see her breasts several times within a few days. When she refused his advance in late September, he gave her a written coaching for not working previous scheduled shifts.

Complaint. The employee then reported the supervisor’s sexual harassment to the store manager, the first time she had done so. At HR’s direction, the store manager began immediately investigating. The supervisor denied making any sexual comments toward the employee, and the store manager ultimately concluded that her claims could not be verified without witnesses. However, he required the supervisor to retake Walmart’s ethics training course.

The employee sued Walmart, alleging the supervisor sexually harassed her by creating a hostile work environment over a five-month period in violation of Title VII. The federal district court granted summary judgment for Walmart, and the employee appealed. The Seventh Circuit affirmed the district court’s dismissal, similarly finding that Walmart had proved the Faragher-Ellerth defense.

No constructive discharge. The Seventh Circuit first found that the employee did not suffer an adverse employment action, rejecting her claim that she was constructively discharged. The court found no evidence she was forced to resign because of the supervisor’s conduct. Rather, she continued to work her shift for several years without alleging any other incidents of sexual harassment. She was let go three years after she complained, and only because she did not return to work after taking medical leave.

Additionally, although the supervisor’s alleged conduct was unacceptable, it was insufficiently severe to claim constructive discharge under Seventh Circuit precedent. The employee claimed he made sexually suggestive and inappropriate comments, but did not allege he ever touched her, threatened her, or made her concerned for her safety.

Reasonable care. No reasonable jury could find that Walmart, based on the arguments the employee presented, failed to act unreasonably. It was on notice that the supervisor was likely to harass female workers because of the previous sexual harassment claims against him. In response to the previous harassment claims, however, Walmart had moved the supervisor from the day shift to the overnight shift, and the employee did not argue that Walmart ignored the previous complaints or failed to exercise reasonable care in preventing the harassment.

Walmart also had a comprehensive policy prohibiting sexual harassment, which provided numerous options to report retaliation. Once notified of the harassment, it promptly launched a thorough investigation, which was limited only to the extent the employee failed to provide any corroborating witnesses. Although unable to substantiate the employee’s claim, Walmart reiterated to the supervisor that workplace harassment was forbidden and required him to retake its ethics course. Nor did the employee alleged any new sexual harassment claims after Walmart completed its investigation.

Employee’s unreasonable delay. The court further found that the employee unreasonably delayed reporting the supervisor’s harassment for four months, which prevented Walmart from taking corrective measures. Her claims that she feared retaliation were subjective and so did not absolve her of her duty to report the harassment promptly. Although the employee claimed she did not know about Walmart’s anonymous sexual harassment hotline, information about the hotline was included in the company’s sexual harassment policy, and the employee also had the option of reporting the harassment to any salaried employee.

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