By Kathleen Kapusta, J.D. Citing coworker remarks regarding a preschool assistant’s weight and age, including that she did not have to sit on the floor because it would be too hard for her to get up and “before you got fat, I bet you had a really nice booty,” a federal court in Colorado found she produced sufficient evidence to take her hostile work environment claim to a jury. Although her failure-to-accommodate claim failed, her ADA and ADEA retaliation claims also survived summary judgment (Chavez v. Adams County School District No. 50, April 12, 2016, Jackson, R.). During her tenure with the school district, the employee, who weighed between 290 and 320 pounds and suffered from major recurrent depression and panic disorder, claimed multiple coworkers and supervisors discriminated against her because of her age and disabilities. Her complaints were not properly forwarded to the district’s compliance officer, she alleged, and instead, she faced retaliation for filing multiple EEOC charges, including excessive discipline for time-management issues, an involuntary transfer, and constructive discharge. She sued the school district, asserting claims for discrimination based on her age and disability and unlawful retaliation. Faragher/Ellerth defense. The district invoked the Faragher/Ellerth defense to her HWE claim. Although it had two antidiscrimination policies and procedures in place, the court found it failed to show it exercised reasonable care to promptly correct the alleged harassment. Rejecting the district’s claim that its duty was never triggered because it did not receive proper notice of her complaints, the court pointed out that she filed three EEOC complaints and at least one, and presumably all, were forwarded to it. Thus, the court denied summary judgment on this basis. Prima facie case. Also rejected was the district’s assertion that the employee could not establish a prima facie case of HWE. She claimed that two teachers whom she assisted made comments referencing her age and disability—including telling her she didn’t eat much and must have a slow metabolism; commenting that “for being so big you sure are fast;” asking if she could do all the walking associated with working in a middle school when she expressed an interest in a middle school job; asking if she could get on top of her husband during sex; and asking how she and her husband have sex. While the district argued that the number of age- and/or disability-related offensive comments made over the course of 17 months was insufficient as a matter of law, the court explained that whether the comments were objectively offensive was “quintessentially a question of fact,” and thus her HWE claims should go to a jury. Failure to accommodate. Her failure-to-accommodate claim failed, however, because she was unable to establish she was disabled under the ADA. While she put forth evidence suggesting a history of mental impairments, she failed to show her impairments substantially limited one or more of her major life activities. Therefore, summary judgment was granted as to this claim. Retaliation. Fact disputes existed, however, regarding the employee’s retaliation claims. She claimed that after she filed an EEOC charge in 2012, she received multiple disciplinary documents that eventually led to her constructive discharge. Taken together, these disciplinary actions were sufficient to constitute an adverse action. And while the district argued that temporal proximity was tenuous between the filing of the 2012 charge and the disciplinary actions, the court found other evidence supporting the inference of causation. Not only did the employee claim she was reprimanded more often and more severely for allegedly exceeding her weekly work hours and forgetting to clock in or out compared to other employees who violated the same rules, she claimed the district disciplined her in a manner inconsistent with its own policy, as for example, disciplinary her multiple times for a single time clock violation. As to her claim she was constructively discharged in retaliation for her 2013 EEOC charge, the district argued she could have challenged the termination through an appeal and thus she was not faced with a choice between resigning or being fired. But, said the court, even if she could have challenged the termination after the fact, she still faced the initial choice of either resignation or termination equivalent to a constructive discharge. Pretext. While the district contended that it disciplined the employee because of her numerous time clock violations, gave her a negative evaluation due to coworker conflicts and time clock violations, and transferred her because of a vacancy, the court found sufficient evidence of pretext. The employee claimed she was reprimanded more often and more severely than her colleagues for similar alleged violations; the district disciplined her multiple times for a single time clock violation contrary to its policy; and its response (placing her on administrative leave) to her first time clock violation after her transfer was extreme. Agreeing, the court found a jury could conclude that the district’s justifications for its actions were pretexual.
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