Labor & Employment Law Daily Employer may have unreasonably failed to prevent a coworker’s sexual assault of female security guard
Thursday, September 3, 2020

Employer may have unreasonably failed to prevent a coworker’s sexual assault of female security guard

By Marjorie Johnson, J.D.

The victim, relying on testimony that supervisors ignored a prior sexual harassment complaint that was made against the coworker, claimed the company had constructive knowledge of the coworker’s history of sexual harassment and failed to investigate or take any action.

A female security guard terminated less than a month after reporting that a male coworker sexually assaulted her at work survived summary judgment on her Title VII claims of hostile work environment and retaliation, though her ADA claim was tossed for failure to exhaust administrative remedies. A federal district court in Louisiana ruled that while the coworker was fired the day after she reported his behavior, triable issues existed as to whether the employer had constructive knowledge of his prior harassment of others and acted unreasonably by not acting earlier. The employee also cast sufficient doubt on the employer’s contention that it changed her schedule and fired her for legitimate reasons, including a lack of manpower, and not in retaliation for her protected EEO activity (Dowdell v. Culpepper & Associates Security Services, Inc., August 28, 2020, Morgan, S.).

Sexual harassment. In March 2018, the employee was hired to work as a security guard at a veterans hospital. She claimed that about two months later, a male shift supervisor sexually harassed her by “shoving his hand between her legs and groping her vagina.” She reported the incident to the office administrator on June 11, just days later, and the individual was fired the next day, after having admitted to the allegations during an interview conducted by the director of operations.

Changed schedule and termination. The office administrator then attempted to switch the employee’s work location, but she objected because she did not feel comfortable working in the new assigned area under the circumstances. She was subsequently discharged on July 9, purportedly because she called off for certain shifts and because of her demeanor at a meeting. The employer also claimed that she quit.

Administrative exhaustion. The employer first argued that the employee only administratively exhausted her retaliation claim. But while she only checked the “retaliation” box on the EEOC charge form, in the “particulars” section, she alleged the sexual harassment, identified the harasser, and reported the time frame of the harassment and resulting actions. Though sparse, the charge provided enough relevant details to sufficiently exhaust her sexual harassment claim.

ADA claim tossed. However, she failed to exhaust her ADA claim that she was denied a reasonable accommodations for a temporary disability. She did not put the employer on notice of the claim since she failed to check the “disability” box or mention anything about disability within the charge. The ADA claim also did not “reasonably grow out of” her retaliation or sexual harassment claims.

Coworker harassment. Turning to the merits of the employee’s sexual harassment claims, the court held that because the shift supervisor undisputedly did not have the power to take tangible actions against her, he was considered a coworker for purposes of Title VII. Therefore, her sexual harassment claim was one for hostile work environment, not for quid pro quo harassment.

Single incident could create HWE. Though the employee alleged only incident of physical sexual harassment, a reasonable individual could find the sexual assault to be severe enough to alter the conditions of her employment. She also claimed due to her fears for her safety following the incident, she began to feel overwhelming anxiety and “was left with no other option than to call in sick.”

Constructive knowledge of prior harassment? While at first glance it appeared that the employer took prompt remedial action by firing the shift supervisor a day after the employee reported the sexual assault, she argued that it acted unreasonably by not acting earlier. Specifically, she claimed that the company had constructive knowledge of his prior harassment of others and failed to investigate the conduct or take any action, relying on another female employee’s testimony that she was sexually harassed by him and reported the behavior to supervisors but no action was taken. On this record, triable issues existed as to the employee’s prima facie showing of liability as well as the employer’s Faragher/Ellerth affirmative defense.

Retaliatory motive. Also allowing the employee’s retaliation claim to proceed to trial, the court found that she established a prima facie case. She alleged the shift supervisor sexually assaulted her on June 5, that she reported the incident on June 11, and that she was terminated less than a month later on July 9. She also claimed that scheduling changes and harsh behavior from supervisors began shortly after she reported the sexual assault. This proximity between her complaint, changes to her schedule, and her alleged termination established the causal element.

Pretext. The employee also cast doubt on the employer’s alleged reasons for the employee’s schedule changes and alleged termination. First, it claimed that her schedule changes were due to the recent departure of another guard and to ensure that all staff were familiar with all posts. However, the employee provided evidence suggesting that guards’ weekly schedules tended to be similar and disputing how often they moved around posts.

She also denied the employer’s claim that she quit her job and refuted its alternate contention that it terminated her due to her failure to work shifts on July 5, 7, and 8, in addition to her allegedly aggressive behavior at a meeting on July 9. In particular, she provided evidence disputing whether the employer’s lack of manpower was the real reason management did not accept her call-offs, including a chart of guards employed from March 1 to July 31 which showed that a sufficient number were employed during that time period. On this record, a jury could infer retaliation was the real motive for the employee’s alleged schedule changes and ultimate termination.

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