Attacking facts underlying hostile environment claim was improper basis for dismissal at pleading stage
Monday, December 9, 2019

Attacking facts underlying hostile environment claim was improper basis for dismissal at pleading stage

By Marjorie Johnson, J.D.

The employer sought to dismiss certain facts pertaining to two episodes in which male execs purportedly made sexual advances to the employee, which she alleged in support of an HWE claim that also alleged abusiveness from her female boss.

CareerBuilder lost its bid to dismiss a former female director’s hostile work environment, wrongful discharge, and IIED claims—which included allegations that she rejected the sexual advances of two male sales execs and was subjected to abusive conduct by a female supervisor with a history of treating women unfairly—since the company failed to attack the sufficiency of her claims and instead attacked the underlying alleged facts themselves. A federal district court in Illinois ruled that such a "winnowing of a claim" properly occurs at summary judgment and not at the pleadings stage, and while the relevance of evidence may also bear on the appropriate scope of discovery, that issue was better served by motions for a protective order or to compel (McInerney v. CareerBuilder, LLC, December 3, 2019, Tharp, J., Jr.).

The employee worked for CareerBuilder for over a decade, with a break at some point to raise her children. This case arose from events that occurred after she returned in September 2015 as the director of strategic initiatives. She claimed that hereafter, she found herself the victim of unwanted sexual advances by male sales executives and the victim of a female boss known for her abusive behavior toward women.

Sexual advances. The first sexual advance occurred in January 2016 during a customer event. As she was leaving the hotel bar, a senior sales exec whispered, "I’m coming to your room" and began following her, while the chief sales officer gave a "smiling nod of approval." After she repeatedly told the sales exec no, he asked, "What the f**k are you going to do? I’m not leaving" but relented when a customer walked by. The second episode took place at a sales team gathering following the holiday party the following year, when a different senior sales exec asked her if she would "f**k a married guy like me," prompting her immediate departure.

Afraid to complain. She didn’t report either incident to HR out of fear that doing so would be "futile and detrimental to her career." She claimed that the men’s behavior was very common at the company and that it was "common knowledge" reporting such incidents would lead to being "fired or red-flagged as a problem employee." She also had reason to believe that high level executives were already aware of the two men’s behavior but took no responsive action.

Took new job under abusive manager. Meanwhile, a few months after she returned to the company, the CFO encouraged her take a new position as marketing director of a subsidiary. She was reluctant since the female manager to whom she would report "had a reputation for being particularly hard on female employees." However, she eventually accepted the position after the CFO reassured her that the company would not tolerate abusive or discriminatory conduct.

Her fears were soon realized as her new manager engaged in "abusive and discriminatory conduct," including disparaging comments about the employee’s status as a divorcee and single mother and comments about her breasts. The manager also treated her less favorably than her male peers by repeatedly giving her difficult and time-consuming tasks that were not part of her job duties. In addition, the manager bragged about her efforts to make female employees cry so that they would "toughen up." The workplace stress caused the employee to suffer stress-induced migraine headaches and her neurologist advised her to stop working for the female manager.

Fired after complaining. She discussed the manager’s conduct with the chief HR officer (CHRO) and the subsidiary’s CEO, who acknowledged her history of abusive conduct towards women. In a February 2017 meeting, the CHRO told her that she had spoken with the manager about her treatment of female employees, but that she would not be punished due to her worth to the company. A few weeks later, the employee learned that her job was being eliminated.

Didn’t seek dismissal of claims. The court denied the company’s motion to dismiss and faulted it for not attacking the employee’s claims and instead targeting the individual counts and individual facts underlying them, which were not the proper targets of a Rule 12(b)(6) motion. While the employee’s complaint included three distinct counts—each of which set forth a theory of liability—it included only two claims: hostile work environment and wrongful discharge.

The employer’s ultimate contention was that "all allegations that predate October 5, 2016 are time barred" and "should not be considered in support of Plaintiff’s Title VII claim." However, it did not argue that the allegedly time-barred allegations—which included part of the employee’s time working for the female manager and her termination—could not plausibly support liability for HWE or wrongful discharge. Instead, it sought to dismiss facts pertaining to the two episodes in which the male execs made sexual advances, which she alleged in support of her HWE claim.

Sought evidentiary rulings. Rule 12(b)(6) allows for the dismissal of claims, not evidentiary rulings about the relevance of specific allegations. That sort of "winnowing of a claim" properly occurs at summary judgment and not at the pleadings stage, when the question is only whether a plaintiff alleged sufficient facts to state a plausible claim for relief on some legal theory. The relevance of evidence may also affect the appropriate scope of discovery, but that issue would be considered in the context of motions for a protective order or to compel, not a motion to dismiss.

By seeking only to carve out certain allegations as irrelevant or time-barred, the employer failed to substantively move to dismiss the employee’s Title VII claims. Dismissal was also improper as to the state law counts since they were simply "alternative theories of recovery" that stemmed from the same fact allegations that gave rise to the employee’s Title VII claims.

The case is No. 1:18-cv-04073.

Attorneys: Daniel W. Tarpey (Tarpey Wix) for Lori McInerney. Michael J. Gray (Jones Day) for CareerBuilder, LLC.

Companies: CareerBuilder, LLC

Cases: Discrimination SexualHarassment Retaliation Procedure StateLawClaims IllinoisNews

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