Employment Law Daily Supervisor’s ‘If I had a gun I would shoot her’ comment supports retaliation claim
Friday, August 12, 2016

Supervisor’s ‘If I had a gun I would shoot her’ comment supports retaliation claim

By Marjorie Johnson, J.D. An employee who complained to Human Resources about her supervisor’s harassment, then found out that her supervisor told a coworker "if I had a gun I would shoot her," defeated summary judgment on her Title VII and state law claims of retaliation and constructive discharge. However, her hostile work environment claims failed because most of the incidents were time-barred, and the remaining three incidents were not sufficiently severe or pervasive (Soga v. Kleinhans, August 9, 2016, Mueller, K.). Troubles with new supervisor. The administrative employee’s troubles began soon after she was placed under the supervision of the sheriff department’s new public administrator in May 2011. Their first negative encounter occurred in June, when she challenged his suggestion that his friend be hired to perform work at an estate property. A similar encounter occurred while working with Habitat for Humanity, during which he became upset and disrespectful to her. After he presented her with a "letter of instruction" in July, their interactions grew more contentious, with him directing her to work in the heat and then becoming hostile after a coworker complimented her in an "atta-girl" email. He gave her another "letter of instruction" in September and she eventually requested and received a reassignment away from him. Afterwards, she heard him make two separate comments to a coworker that she found inappropriate and witnessed him "crowding" a female visitor. Complaint to HR. She eventually sought reassignment to a different location and successfully avoided him from November 2012 until April 2013. However, on April 2, he became irate after running into her in the hallway, yelling "You need to stop being rude to me." Two days later, he complained about her to her supervisor and a coworker. After the coworker warned her that he was really mad at her and "won’t rest until you’re gone," she filed a formal complaint of harassment with the HR department on April 16, 2013, listing several incidents since 2012. "If I had a gun . . ." When the supervisor heard about her complaint he called in three of her coworkers and asked if he was as "aggressive" as she suggested. He later told one of them, "If I had a gun, I would shoot her." She reported the comment to HR. The county ultimately concluded that her harassment claims were unsupported, but that his comment about wanting to shoot her was inappropriate and violated county policy. It acted by immediately escorting him from the building and placing him on paid administrative leave for more than four months. Resignation. While he was still on leave, the county offered to convert her temporary assignment at the other location to a permanent job with a ten percent increase in pay, a county car, and gas covered by the county. However, she resigned after she was advised of the supervisor’s impending return. The county reoffered the job to her, but without the car and fuel. She declined, stating that the drive would be cost-prohibitive and she feared for her safety. Most HWE claims time-barred. Most of the employee’s hostile work environment claims were time-barred; they were discrete and so didn’t fall under Title VII’s continuing violation doctrine or the FEHA’s "sufficiently linked" standard. For instance, she pointed to his rude responses to her warnings about his referrals to friends; her letters of instruction, his demand that she work in the hot summer sun; his reprimand of her for encouraging an "atta-girl" email. These instances did not "repeat" each other, as compared to cases involving racial jokes and derogatory acts. Furthermore, intervening occurrences precluded the limitations-period exception. Specifically, ten months passed between the last untimely incident (his "crowding" of another female) and the timely incident in which he became irate with the employee in the hallway. During this time, she was transferred to a new location and hadn’t come into contact with him for at least six months. Finally, to the extent any incidents were plausibly repetitions and sexually hostile in nature, they were not linked to other incidents. These matters included an incident in which she witnessed him approach a female coworker to ask if she was getting dressed, the time he heard her ask the same coworker if she was "bouncing . . . all night" with her husband, and the last incident in which she witnessed him inappropriately crowd a female member of the public. Timely conduct not actionable. Moreover, the three instances of conduct that were not time-barred were insufficient to create an actionable HWE. Specifically, no reasonable jury could conclude that his complaint about her rudeness, in addition to hearing he would not rest until she was gone, by themselves created an "abusive" working environment. Even when considering the time-barred incidents as background, these acts were not sufficiently severe or pervasive. Retaliation claim. Although her HWE claim failed, the employee survived summary judgment on her retaliation claim. While she did not engage in protected activity by allegedly opposing "gender harassment" in July 2011 when she received her first letter of instruction, her formal HR complaint in April 2013 was protected. Moreover, the county’s decision to let her supervisor return to work was not an adverse action, but a reasonable jury could conclude his interrogation of three coworkers after she filed her HR complaint, and his passed-along threat was. "An employee who anticipates that her superior will interrogate co-workers about her actions and tell a co-worker he wants to harm her, may reasonably be dissuaded from filing a complaint." Constructive discharge. The employee also advanced her claim that she was constructively discharged. A reasonable jury could find that the supervisor’s threat, when considered together with the county’s decision to let him return to work, made her working conditions intolerable. Notably, she resigned less than two weeks after hearing he was returning and three days after he did return. Additionally, she declined to take the offered reassignment because she felt her safety was in jeopardy. Taken together, the supervisor’s threat to shoot her, and his intimidation of her coworkers, could reasonably be found to qualify as "aggravating factors."

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