Employment Law Daily Mocked by customers for accent, call center employee advances hostile environment claim
Wednesday, April 11, 2018

Mocked by customers for accent, call center employee advances hostile environment claim

By Kathleen Kapusta, J.D.

Denying summary judgment against the Title VII and Law 100 claims of a Hewitt customer service rep who worked in a Puerto Rican call center, and who alleged that stateside English-speaking employees of a Hewitt client made comments to her such as “I really hate your accent, f**k yourself and transfer this call,” a federal court in Puerto Rico found that whether the comments were made, their content, character, frequency, Hewitt’s knowledge of them, and the rep’s reaction to them presented triable issues as to whether she was subjected to a hostile work environment. Further, Hewitt failed to show it could not be held liable for the third-party harassment of its employee (Rivera-Cruz v. Hewitt Associates Caribe, Inc., decided March 30, 2018, filed April 6, 2018, Delgado-Hernandez, P.).

The rep worked for eight months through successive temporary service contracts answering calls mostly from employees of Home Depot, some of whom purportedly made openly derogatory comments about her accent while she tried to assist them with benefits-related concerns. The comments allegedly included statements like “your stupid accent makes me sick,” and “Do you really speak and understand English? I don’t think so, you sound stupid and unaware of my situation.” She was terminated when the last of the contracts expired. She then sued under Title VII, the ADEA, and Puerto Rican law. Hewitt moved for summary judgment and a magistrate judge issued a Report and Recommendation recommending that the motion be granted in part and denied in part.

National origin discrimination. As to the employee’s nation origin-based hostile work environment claim, the magistrate recommended summary judgment be denied finding a jury issue as to the comments concerning her accent, and sufficient facts to support the conclusion that Hewitt knew or should have known about the comments and failed to take immediate and corrective action. In objecting to the R&R, Hewitt argued the comments simply reflected a person’s preference to speak with someone located in the mainland United States and were related to the employee’s inability to perform her job duties by speaking English fluently in order to assist Home Depot’s workers. Further, it asserted, the employee’s one-time telephone interaction with each customer differed from situations where actionable harassment has been found in cases where the employee had regular interaction with the same customers.

Paranoid crazy mode. And while it also claimed the employee never complained, there was evidence that a supervisor told the employee she had experienced similar situations and another supervisor sent an email to customer service reps for Home Depot stating she had “heard a few calls where Home Depot employees have [gone] into paranoid crazy mode.” This evidence showing Hewitt believed that Home Depot employees were acting in such a manner increased the likelihood that the employee also experienced such “crazy” behavior, said the court.

As to Hewitt’s contention the employee could have transferred any harassing calls, she countered that she was instructed to calm down the caller if things started to escalate and the court found it unclear how instructing an employee to try to calm down a caller uttering insulting language was an appropriate response to protect the employee from that language. All in all, the employee presented triable issues as to whether she was subjected to a hostile work environment.

Employer liability. But that did not end the matter as the employee also had to provide a basis for holding Hewitt liable for the alleged third-party harassment. Observing that in the First Circuit, employers may be liable for third-party harassment where they knew or should have known about the harassment and yet failed to take prompt steps to stop it, the court explained that the employer’s ability to address nonemployee harassment has been measured with a view to how much the employer controls the conditions of the work environment and could have expected to exert control over the nonemployee’s conduct. An employer cannot avoid liability by adopting a “see no evil, hear no evil” strategy and an employer can be liable for the prohibited harassment by ratifying or acquiescing to it. Here, the record was silent on the nature of Hewitt’s contractual relationship with Home Depot, and the authority or ability within that relationship to take appropriate action. Thus, summary judgment was denied as to the hostile work environment claims.

Age discrimination. Turning to the employee’s age discrimination claims under the ADEA and Law 100, the court assumed she established a prima facie case of discrimination and Hewitt produced a lawful reason for its decision: poor performance. And while the magistrate found evidence of pretext, the court disagreed. Although she pointed to a comment by a supervisor two days prior to her termination that he wanted “young, new blood,” and “young dynamic individuals,” it was not probative of animus, said the court, as there was no direct connection between the words and the employee’s termination.

Further, while she argued she received positive performance reviews, there was evidence that at the time of her discharge, she was not meeting Hewitt’s specified quality score and that she had made numerous mistakes. Granting summary judgment against these claims, the court found her prior assessments did not render the most recent negative appraisal of her performance inherently untrustworthy.

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