By Wayne D. Garris Jr., J.D.
When the employee’s supervisor yelled obscenities and insults at her, at times becoming physical, her boyfriend tried to intervene, but the employer gave her a written warning and told her to “resolve her issues directly” with her supervisor.
Granting in part an employer’s motion to dismiss, a federal district court in Georgia found that a female employee sufficiently pleaded Title VII hostile work environment and retaliation claims against her employer by alleging that her manager subjected her to daily harassment, including yelling obscenities and insults, making derogatory comments about women, and physically injuring her. But her Title VII claims against her former manager in his individual capacity and her state law claims were dismissed (Comerinsky v. Augusta Coating and Manufacturing, LLC, September 3, 2019, Hall, J.).
Abusive manager. The employee worked as a purchasing assistant and alleged that almost immediately after she began her employment, her manager verbally abused her and called her a “stupid Yankee,” “dumbass,” and “slow.” He also told the employee that he “liked it back when women did what they were told without question.” After the employee injured her back in a car accident, her manager told made insulting comments about her to the employer’s vendors and required her to carry heavy boxes, despite medical restrictions and instructions from the employer’s HR director.
Physical confrontations. On two occasions, according to the employee’s allegations, her manager slapped documents out of her hand causing scratches and bruises on her arm. On one occasion while the employee was speaking with the QA manager, her manager grabbed her by the arm, pulled her away, and began yelling at her until the QA manager intervened. She also claimed that her manager walked into her office and demanded that she put her hand up the back of his shirt to feel how sweaty he was.
Overworked. In addition, the employee alleged that her manager deprived her of breaks, Routinely forced her to work through her lunch and off the clock, and required her to run personal errands for him.
Complaints to HR. The employee made multiple complaints to HR, but no action was ever taken. When she told HR about her manager’s demand to rub his back, she alleged that the HR manager laughed and dismissed her complaint. The HR manager allegedly often told her “that’s Bob being Bob.” The employee also complained to the Operations Manager twice, but no action was taken.
Boyfriend intervenes. Finally, the employee’s boyfriend contacted the employer about the abusive environment and sent a text message directly to her manager stating “I just want to let you know that if you raise your voice with her one more time you will have the job to do by yourself. She is not going [sic] continue to be abused at work by you.” In response, the HR manager called a meeting with employee and her manager in which the HR manager called the text message a threat on the manager’s life, issued a written warning to the employee, and told her that any issues needed to be raised solely with her manager.
Lawsuit. Shortly after the HR meeting, the employee quit her job and after exhausting administrative remedies, filed suit alleging a hostile work environment and retaliation in violation of Title VII. She also asserted state law claims for battery against her manager in his individual capacity, negligent retention and supervision, ratification, gross negligence and negligence per se against her employer, and intentional infliction of emotional distress against her manager and the employer. The employer moved to dismiss all of her claims.
No Title VII claim against manager. Because the employee failed to clarify whether her Title VII claims against her manager were in his individual capacity or as an agent of the employer and Title VII claims could not be brought against him in his individual capacity, the court dismissed the Title VII claims against the manager.
Sufficient evidence of hostile work environment. As for the employer’s argument that her manager’s insults were not gender based, the court was not persuaded, finding that even though insults like “stupid” and “slow” are not inherently gender based, the manager’s other comments and behaviors indicated animus against women. He allegedly said he “liked it back when women did what they were told,” and that “you women were supposed to be able to multitask,” indicating a belief that women were less intelligent and should be subservient to men in the workplace.
Was it severe? The employer argued that even if the manager’s comments were gender based, they were not severe or pervasive. Again, the court was not persuaded: The employee alleged she was subjected to repeated insults and gender-related comments that went beyond “sporadic use” of abusive language. The harassment intensified when he became physical and when he ridiculed her in front of third parties. It also altered the terms and conditions of her employment because she regularly missed lunch breaks, worked off the clock, and was forced to perform job duties against her doctor’s restrictions.
Retaliation. Because it found that the employee had sufficiently alleged a hostile work environment, complaining about it to HR and the operations manager was protected conduct. During the HR meeting with her manager, the employee was given a written warning and was told that her only recourse was to turn to her harasser. The court found that restricting her ability to raise harassment complaints and issuing her a written warning may have dissuaded a reasonable worker from making or supporting a charge of discrimination, subjecting her to an adverse employment action. Thus, the court denied the motion to dismiss the retaliation claim.
State law claims. However, the court dismissed her state law claims to the extent they were barred by the two-year statute of limitations and her negligence per se claim in its entirety.
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