EEOC advances claim on behalf of Dollar General employee who worked with ‘harasser’ less than a month, (2020-03-24)
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Tuesday, March 24, 2020

EEOC advances claim on behalf of Dollar General employee who worked with ‘harasser’ less than a month, (2020-03-24)

By Kathleen Kapusta, J.D.

"This case," said the court, "presents a quintessential ‘he said, she said’ situation in terms of whether the alleged harassing conduct took place."

Although Dollar General argued that the limited number of shifts an assistant store manager worked with her alleged harasser rendered his conduct insufficiently pervasive, "the inverse inference can reasonably be drawn," said a federal court in Maryland, as the "the fact that so many discrete incidents of harassment took place over a very short employment window reflects the intensely pervasive nature of the harassing conduct." Denying summary judgment on the EEOC’s sexual harassment claim, which it brought on behalf of the employee, the court also found the concentrated nature of the store manager’s alleged behavior over a little less than a month raised a fact issue regarding severity. The court, however, granted Dollar General’s motion as to the EEOC’s constructive discharge claim (EEOC v. Dolgencorp, LLC, March 18, 2020, Gallagher, S.).

Alleged harassment. Shortly after the employee accepted an assistant store manager position for a Dollar General store on June 2, she claimed the store manager began sexually harassing her. Among other things, she alleged, he attempted to massage her shoulders; commented on her breasts and how she looked in her pants; mentioned his "black sausage" while they were stocking canned sausages and then "humped" the sausage display; turned her head toward his crotch while she was kneeling to stock shelves and said she could be on her knees anytime for him; grabbed her leg and said she could touch him anytime; and told her while she was buttoning her shirt that she should leave it unbuttoned. On one occasion, when she felt ill and attempted to leave the store during her lunch break, he purportedly told her he would fire her if she left. When her fiancé brought her medicine and stayed with her while she ate her lunch outside, the manager paced back and forth staring at her.

Transfer. After the lunch incident, and less than a month after she accepted the job, the employee complained to a female store manager at another store in Chesterton, who advised her to contact HR to report the conduct. She also suggested that the employee transfer to the Chesterton store. The district manager agreed and allowed her to transfer while he investigated her complaint. The employee also contacted HR. She began working at the Chesterton store on July 4, although she took several days off for mental health treatment due to the harassment.

Menacing smile. On August 1, the employee was working at the cash register at the Chesterton store, which was preparing for a visit from a corporate executive. Her former store manager, who had volunteered to help the store prepare for the visit, walked in, smiled "menacingly" at her, and walked to the back where the other volunteers were gathering. Upon seeing him, the employee left the store and resigned. The district manager called her to apologize and asked her to return but she never responded. Sometime after that, the district manager, unable to substantiate the employee’s sexual harassment allegations, issued a "SMART coach" to the manager warning that future misconduct could result in his termination.

Pervasive. Observing that this case "presents a quintessential ‘he said, she said’ situation in terms of whether the alleged harassing conduct took place," the court, viewing the facts in the light most favorable to the EEOC, found the employee was subjected to a significant number of harassing incidents during a short period of time. Although the employer pointed to the limited number of shifts they worked together to support it’s contention that the conduct could not have been pervasive, "the inverse inference," said the court, "can be drawn: the fact that so many discrete incidents of harassment took place over a very short employment window reflects the intensely pervasive nature of the harassing conduct."

Severe. Further, given the concentrated nature of the behavior over a short time period, the court also found a fact issue as to severity. Not only did the employee allege that the manager engaged in physical touching and crude comments, his status as store manager with the authority to discipline and fire employees "enhances the severity."

Employer liability. The EEOC next argued that the employee’s constructive discharge, which was triggered when the district manager assigned the alleged harasser to the Chesterton store, precluded Dollar General from asserting the Faragher/Ellerth defense. Finding that this "mischaracterized the evidence in the record," the court noted that area store managers were asked to help the Chesterton store prepare for an executive visit and there was no evidence the district manager assigned the alleged harasser to that store. Nor was there any evidence the alleged harasser knew the employee would be working at the store that day. Although he smiled "maliciously" at her, he passed by without speaking and this isolated conduct was not enough to support her constructive discharge claim.

Faragher/Ellerth defense. Finally, the court found fact issues as to whether Dollar General exercised reasonable care to prevent and correct promptly any sexually harassing behavior. Although the company had an anti-harassment policy, questions remained regarding the adequacy and promptness of its investigation, said the court, noting the district manager’s testimony that "It took far too long to conclude this case," as it was his first time handling that type of situation. Further, there were fact issues as to whether the employee unreasonably failed to take advantage of any preventive or corrective opportunities given that she did not promptly report the manager to HR.

The case is No. SAG-18-2956.

Attorneys: Debra Michele Lawrence for the EEOC. Jaime Walker Luse (Tydings and Rosenberg) for Dolgencorp, LLC.

Companies: Dolgencorp, LLC; Dollar General Stores, Inc.

Cases: SexualHarassment Discharge GCNNews MarylandNews

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