Employment Law Daily Taking voluntary sick time to avoid harasser backfires; hostile environment, discrimination claims dismissed
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Monday, December 17, 2018

Taking voluntary sick time to avoid harasser backfires; hostile environment, discrimination claims dismissed

By Lisa Milam, J.D.

A private fire department employee who racked up voluntary sick leave in an effort to avoid working with his known harasser could not advance his race discrimination or hostile work environment claims, a federal magistrate judge in Illinois held, granting the defendants’ motion to dismiss. Because the employee had successfully avoided working with the harasser for all but one shift, he had asserted only speculative claims of a hostile work environment, the magistrate reasoned. Moreover, losing 120 hours of sick time was not an adverse employment action, the judge said, so his discrimination claim failed as well (Ross v. The University of Chicago, December 10, 2018, Gilbert, J.).

Earlier harassment. The plaintiff was a battalion chief for UChicago Argonne’s fire department, the lone African-American employee in a 26-member department. In 2013, a firefighter began to make racial comments, and he hung a black-faced puppet in the plaintiff’s locker. The plaintiff immediately reported the incident to HR, and the harasser was given a five-shift suspension and two-year probation. In addition, the fire chief at the time assured the plaintiff the harasser would never work on his shift, and if the harasser wanted to swap shifts with another firefighter, he’d have to get the fire chief’s express approval.

New fire chief. All went well until the fire chief retired and a new one took the helm. Soon enough, the harasser managed to trade into one of the plaintiff’s shifts. “Let the games begin,” he told the plaintiff. He resumed his harassment and regularly traded shifts so that he could work on the plaintiff’s shift. The plaintiff initially denied a request for the harasser to swap into his shift, but the new fire chief told him that he wasn’t authorized to deny shift trade requests unless there was “a legitimate operational reason” for the denial—and that his desire not to work with the firefighter was not a sufficient reason.

Sick time. With no assistance from the new fire chief, the plaintiff, feeling threatened by the harasser, began to take voluntary sick days to avoid working with him. After he had used up 120 hours of sick time, he was told he would face “corrective action” if he continued to do so.

Not severe. The plaintiff was diagnosed with hypertension, insomnia, and anxiety. Still, the magistrate rejected his hostile work environment claims, among others, finding the alleged conduct was not sufficiently severe to be actionable under Title VII. The employer had taken prompt action the first time around, the court noted, and the plaintiff offered no evidence showing that the employer knew the harasser had resumed his mistreatment and had made the “let the games begin” comment (and even if the employer knew, the conduct alleged did not meet “the severity threshold).”

Only speculative. Through his use of sick time, the plaintiff had largely managed to avoid working with the harasser, so his hostile work environment claims were “speculative” at best. He had only worked one shift with the harasser since 2013, during which he had to endure only “relatively minor incidents,” the court observed. At most, then, the plaintiff asserted only “speculative harm from potential future harassment” if forced to work the same shift as the harasser.

Sick time was voluntary. The plaintiff also alleged a race discrimination claim, and argued he lost a substantial amount of sick time as a result of the discrimination. But this was not an adverse employment action, the court said. First, it noted, “the loss of some benefits generally does not rise to the level of an adverse employment action.” Second, his use of sick time was purely voluntary. While the plaintiff’s voluntary use of sick days might have reduced the amount of sick time accrued, “it does not rise to the level of egregiousness necessary to constitute an adverse employment action,” the court wrote, noting too that the plaintiff was allowed to use his sick days with no pushback from his employer for quite some time before he was warned about using sick days without a “legitimate operational reason.”

Here, the plaintiff “was confronted with two inherently unpleasant situations in his view—work with [his harasser] or use his accrued sick time to avoid doing so,” the court said, but “the choice between two unpleasant alternatives does not obviate the voluntariness of an individual’s choice.” The court acknowledged that “the choice between working with an alleged harasser and using one’s sick time may be inherently unpleasant,” but said the plaintiff “cannot have it both ways.”

The plaintiff had asserted a number of additional claims against his employer (and the University of Chicago as his ostensible joint employer), and the harasser and the fire chief as individual defendants. He alleged retaliation, negligent supervision, intentional infliction of emotional distress, respondeat superior, and other causes of action under Illinois common law. But those claims fared no better.

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