By Marjorie Johnson, J.D.
Hostile work environment claims that a male coworker joked about a female employee’s bisexuality and referred to her as a “stupid bitch” could not survive summary judgment. Her testimony that she heard that the coworker made the offending comments was inadmissible hearsay, and even if the comments were admissible, they weren’t sufficiently severe or pervasive, a federal court in Indiana ruled. She also failed to show that the employer could be liable for his conduct, or that of another male coworker who purportedly criticized her performance after she rejected his advances, since she failed to put the company on notice of her claims (Slentz v. Emmis Operating Co., February 5, 2018, Magnus-Stinson, J.).
Increased workload “unsustainable.” The employee was hired as the digital brand manager for a sports radio station. After her manager was replaced, her department was restructured and she took on added responsibilities for another radio station. Though she received a nominal raise, her workload doubled. Finding the volume of work unsustainable, she complained to her manager, but the workload remained.
Comments about bisexuality. Around the same time, a male producer told the employee he had read a Huffington Post article she wrote about dating as a bisexual woman. Later, she heard that the producer showed the article to most of the people on the sixth floor, and had made jokes and told them she was bisexual. She complained to her manager, who told his superior. As a result, the producer was written up and told to stop his inappropriate behavior.
The employee then heard that the producer began complaining about her work and told “a large amount of people” that she was a “stupid bitch.” During a conversation with an HR representative, she complained that the producer was constantly telling everyone how “horrible” she was and that he sent her work-related emails and text messages late at night, which she thought could be handled without her input. HR investigated and determined that the producer did not violate the company’s harassment policies. However, he was counseled about those policies and reminded of the proper channels to address employees’ performance issues. The HR rep informed the employee that the producer was instructed to cease all inappropriate behavior, and she never raised any additional concerns.
Unwanted comments. Another male producer engaged in unwanted conduct when, while the two were backstage at a concert, he put his hand on the employee’s arm and told her that he “was not a home wrecker, but he would” and that she was “just so sexy.” She laughed and brushed it off, but he subsequently began sending her critical emails relating to her performance. She never reported his sexual overtures or his subsequent criticisms to management or to anyone in HR. Several months later she announced her resignation, telling her manager that the company and the job were not for her anymore and that she felt the producers “were really trying to push [her] out.” However, she was asked to stay on through the end of the year, so she worked for an additional six weeks.
Inadmissible hearsay. As an initial matter, the court granted the employer’s motion to strike and sustained its hearsay objections concerning the employee’s testimony, in reliance on what other coworkers told her, that the producer called her a “bitch” to everyone in the office. Notably, the only remarks she cited about her gender or sexual orientation were those she heard from other employees about what the producer allegedly said about her, which constituted impermissible hearsay and perhaps double hearsay. Moreover, since she didn’t submit any affidavits or deposition testimony from her coworkers or the producer, she failed to provide the necessary foundation evidence to establish a hearsay exception or the independent veracity of these claims. Thus, the evidence could not be relied upon to support her claims or considered by the court in its analysis.
No liability for sexual advances. Moreover, the employee never put the company on notice of the allegedly hostile work environment created by the male producer who purportedly criticized her after she rejected his sexual advances. Consequently, the employer could not be held liable for his conduct. She asserted that she had complained to her manager about the producer’s “relentless criticisms,” but she didn’t indicate that these criticisms related to anything other than her work product, and such complaints were too vague to put management on notice of alleged sexual harassment.
No hostile work environment. Even if the other producer’s “bitch” comments did not constitute inadmissible hearsay, the employee failed to establish that the comments were sufficiently severe or pervasive to create an actionable hostile work environment. While the term “bitch” is gender-specific and can be inferred to harbor animus in the context of a sexual harassment claim, the employee not only failed to show that the producer made such remarks, she also didn’t establish their frequency. Additionally, criticisms of her work, alone, were not actionable under Title VII.
Even if the employee could show that the producer joked about her sexuality to “most of the employees on the sixth floor,” and referred to her as “stupid and a bitch” to others, she couldn’t show that she suffered an objectively hostile work environment. Significantly, the comments were never made in her presence and there was no evidence the producer ever intended her to learn of them. Though she “rightfully” felt this language should not be used in the workplace, the conduct didn’t rise to the level of a hostile work environment. Finally, as with the other male producer, she couldn’t prove that the employer was liable for his alleged harassment.
No retaliatory harassment. Even if she adequately raised her retaliatory harassment claims against both producers in her EEOC charge, the employee also failed to defeat summary judgment on those claims. In addition to failing to establish that she was subject to severe harassment because her sex, she couldn’t show how either of the male’s actions resulted in a significant change in her employment status, particularly since she agreed to stay on for more than a month following her resignation announcement. And while her additional duties with the second radio station significantly altered her workload, those duties were added prior to any complaints, criticisms, or advances by either producer.
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