Employment Law Daily No adverse action, no complaint of alleged harassment for 15 years? No viable claim
Wednesday, September 6, 2017

No adverse action, no complaint of alleged harassment for 15 years? No viable claim

By Lorene D. Park, J.D.

An employee who worked for decades at a family-run business, who had a good relationship with a VP that went beyond the workplace, and who failed to complain after he allegedly started touching her buttocks and making age-related comments after her husband died in 1999, could not show that her resignation 15 years later amounted to a constructive discharge and could not show that the alleged harassment she experienced was unwelcome, concluded the Eighth Circuit, affirming summary judgment against her Title VII, ADEA, and state-law discrimination and hostile work environment claims (Blake v. MJ Optical, Inc., August 31, 2017, Riley, W.).

Long-time “good” working relationship. Born in 1949, the employee started working for the family run optical business in the 1970’s, working for decades as a “bench technician” fitting eyeglasses into frames. In the early days, the owner would sometimes bring his then-adolescent son to help around the shop. In 1993, the now-grown son became the company vice president, supervising the “whole shop” and interacting with the employee every day. The employer-employee relationship, which the employee characterized as “good,” extended beyond the workplace. For example, the employee was invited to the VP’s daughter’s wedding, and he loaned her church a hog cooker, prompting her to introduce the VP to her pastor.

Fanny grab at funeral and beyond. Things changed at a 1999 funeral for the employee’s husband. Several employees attended, including the VP, who allegedly grabbed her “fanny” outside the funeral parlor. She asked “What was that all about?” and he replied “I thought you needed it.” From then on, the VP occasionally touched, grabbed, or smacked the employee’s buttocks at various times. Though she flashed him a dirty look, she never verbally complained to him or anyone else, claiming it “[w]ouldn’t have done any good.” The VP also told her that she “needed to find a man,” which she took to mean that if she had sex with a man, she would be happy. Another time, he asked if her nipples were the size of nickels or quarters.

Age-related remarks. The employee found herself at the receiving end of age-related affronts too. On one occasion, the VP said he “only kept her around to ‘watch her die,’” even when other employees could hear. He acknowledged the comments and said he was joking. He also allegedly told her that her “hands aren’t good anymore” whenever she needed his assistance to fit a lens in a difficult frame. Yet again, she did not complain to anyone.

Despite all this, the employee admitted to platonically touching the VP “between his shoulders” and responding “I love you, too,” when he said he loved her. She also said “no” when asked in deposition if the VP treated her differently because of her gender.

Resignation. In May 2013, the employee noticed a problem with a large number of frames and the company president told the VP (her son) to investigate. Trying to diagnose the problem, he asked the employee to temporarily refrain from her mounting work while others took over for a few days. The employee kept busy with other work and did not consider this a demotion. Despite the instructions, though, she resumed her spot at the mounting station a few days later. The VP saw her and came at her “like a bull moose,” red in the face, chomping his tongue, and telling her “I don’t want you doing that, sit down. Let somebody else do it.”

Fearing he would become physically aggressive, the employee reported his behavior to his mom, who said she would talk to the VP and the employee should “go home and plant flowers.” The employee did not complain about any mistreatment based on sex or age, though she did complain about a different supervisor for unrelated reasons. She took the afternoon off with pay, resigning the next day. She left a message for the president saying she feared the VP’s “noncontrollable” anger. She also claimed she felt she had no choice because she was close to retirement age and believed the employer was “weeding out” expensive, older employees. However, she testified that her decision had nothing to do with the VP’s sexual or age-related conduct.

Lawsuit. Granting summary judgment against the employee’s sex and age discrimination claims under federal and state law, the district court noted that the VP’s behavior was “without a doubt disgusting,” but the evidence was insufficient to support her claims.

No discrimination. Affirming, the appeals court noted that the employee admitted she was not fired, subjected to a pay cut, demoted, or transferred, based on sex or age. Rather, she claimed constructive discharge based on the employer’s failure to control the VP’s conduct. However, the Eighth Circuit has “consistently recognized that an employee is not constructively discharged if she ‘quits without giving [her] employer a reasonable chance to work out a problem.’” Here, the employee did not give the employer a chance to fix the alleged mistreatment. The only time she complained about the VP was one day before she quit, and that was unrelated to gender or age. Though she argued that a complaint would have been “futile,” this unsupported conclusory allegation could not avoid summary judgment for lack of an adverse employment action.

No hostile work environment. Summary judgment against the hostile work environment claims was also affirmed because the employee failed to show she considered the conduct at issue to be unwelcome. She and the VP had known each other for over 40 years and she admitted that their relationship was positive for most of that time. This was reflected in the way their relationship extended beyond the workplace. Also, after the misconduct began in 1999, the employee worked with him for another 15 years without once telling him to stop or complaining to anyone else. Instead, the two joked with each other, exchanged occasional “I love yous,” and she sometimes touched the VP “between the shoulders.” There was also no evidence the VP knew his conduct distressed the employee. To the contrary, he apparently saw it as an attempt to lighten the mood and even the employee recalled him saying she needed “to be happy.” When the employee finally did complain about the VP to the company president, she made no mention of the behavior she now claims created a hostile work environment. “This was too little, too late,” said the court.

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