By Harold S. Berman, J.D.
A female production worker could proceed against Tyson Foods with her Title VII claims arising from allegations that she was sexually harassed by a coworker, a federal district court in Kansas ruled. The court denied Tyson’s summary judgment motion on the employee’s hostile work environment claim because a jury could find that Tyson failed to adequately discipline the coworker, and may even have awarded him with a promotion. The employee also was entitled to proceed with her retaliation claim based on the HR manager’s threats following her internal complaints, and the formal discipline she received, shortly after filing her EEOC charge, for events that took place long before she complained of the harassment (Thompson v. Tyson Foods, Inc., February 5, 2018, Crabtree, D.).
Sexual harassment. The employee worked as a production packer. A new worker began in September 2015 and, on his first day, made sexually explicit comments to the employee and rubbed the side of her breast. The employee reported the incident to a Team Lead, who did not report it to anyone else. The next day, the coworker made more explicit comments, told her that he gave another coworker some nude photographs to show her, invaded her personal space, and acted jealous whenever she spoke with another male employee. She again complained. The coworker’s behavior continued, and the coworker who was given the nude photos showed them to the employee.
Harasser disciplined. The employee reported the coworker’s conduct to a manager at the beginning of her next shift, and HR was alerted. The coworker was suspended without pay for one day. When he returned, HR issued him a pre-termination warning and reviewed Tyson’s sexual harassment policy with him. Afterward, the coworker stared at the employee in a way that made her feel uncomfortable, so she reported the incident to HR. Within two weeks, Tyson moved the coworker to a different department and conducted facility-wide training on its sexual harassment policy. However, the coworker continued to intimidate the employee whenever he came to her work area.
Employee disciplined. The employee alleged that after she reported the coworker’s conduct, the HR manager berated her for reporting him and threatened to write her up or fire her. In October 2015, the employee filed an EEOC charge. Eight days later, a manager reprimanded her for a work error. On October 26, HR issued the employee two warnings for conduct that had occurred, respectively, five months and one month before she reported the harassment. For one of those incidents, which concerned the employee lying on company documents, HR issued a pre-termination warning. In February 2016, Tyson issued the employee another warning for a subsequent infraction. In April, when her supervisor was unable to find her shortly before lunch, the employee was issued a pre-termination warning for taking an unauthorized extended lunch break. (The employee protested that she had merely used the restroom during that time.).
The employee filed a second EEOC charge in July 2016 alleging retaliation for reporting sexual harassment. When Tyson issued her another warning in October for failing to wear safety glasses, the HR manager, upon hearing of the infraction, allegedly bemoaned a “missed opportunity.” Sometime later, in June 2017, the coworker came to the employee’s work area and walked circles around her. In September 2017, he rubbed her shoulders without her consent. The employee sued, alleging hostile work environment and retaliation. Tyson moved for summary judgment, and the employee moved for summary judgment in part on her hostile work environment claim.
Tyson’s response to harassment. The court rejected Tyson’s assertion that its response to the coworker’s harassment was reasonable. Although there was some evidence that Tyson may have acted reasonably (such as its facility-wide training on its sexual harassment policy), a jury could find that Tyson did not respond reasonably to the employee’s allegations. Tyson suspended the coworker for distributing nude photos, not for harassing the employee. Tyson issued the coworker a written warning, but the warning did not reference any of the specific acts of harassment, only the photos.
Nor was transferring the coworker necessarily a reasonable response, as Tyson never told him why it moved him from the employee’s work area, and the coworker had already requested the transfer because it paid more. The employee had also asked for a transfer to resolve the issue, but HR told her that the only available position paid less than she was earning. It was for a jury to decide whether offering the harassing coworker a higher-paying job while offering the employee a lower-paying one was reasonable. Additionally, the adequacy of the HR manager’s response was at issue, as she did not interview a witness to the harassment, never spoke with the employee about her allegations concerning the coworker’s sexually explicit comments, and drafted the official report of the harassment over a month after employee lodged her complaint.
However, the court also rejected the employee’s summary judgment motion in which she contended that Tyson’s response was inadequate as a matter of law. The record could support a finding that Tyson’s response was reasonable because the coworker did not harass the employee again until nearly two years after the employee complained. Also, Tyson moved the coworker, and a jury could find that it was reasonable for Tyson to focus on moving the harasser rather than the employee. It was disputed whether the coworker understood he was being moved because of his conduct, and whether the HR manager acted hostilely toward the employee after she reported the harassment.
Retaliation. The court denied in part Tyson’s summary judgment motion on the employee’s retaliation claim, rejecting the assertion that a jury could not reasonably find that the HR manager’s alleged threats to the employee constituted retaliation for her protected activity. Less than a month after the employee complained of harassment, the HR manager issued a written warning for two incidents that occurred well before she complained. The warnings barred the employee from a transfer for nine months, and there was evidence the HR manager told the employee she should not have reported the harassment and threatened her with disciplinary action because she did.
The court granted summary judgment in Tyson’s favor, though, on the employee’s claim that her lunch break warning amounted to retaliation. Although the warning was a material adverse action, there was no causal link as it took place over six months after the protected activity, and there was no evidence of pretext. The HR manager testified that no one knew where the employee was shortly before lunch was called, and no one could find her, so she was issued a written warning. Although the employee may have been in the bathroom, her supervisor did not know her whereabouts.
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