By Kathleen Kapusta, J.D.
Rejecting an employer’s argument that the conduct at issue was not because of the employee’s sex, the court noted that she was not required to show he was motivated by sexual desire or that he used sex-specific language.
Denying in part a school board’s motion to dismiss the Title VII claims of a cafeteria manager, a federal district court in Virginia found she sufficiently alleged conduct by her coworker and estranged brother-in-law—including leering, snarling, and grimacing directed at her and other female employees—to support her sex-based hostile work environment claim. Her constructive discharge claim failed, however, because she could not show the board’s failure to act was intended to force her to quit. Nor could she advance her state law claims of assault and respondeat superior against the board (Atkins v. Smyth County Virginia School Board, May 29, 2019, Jones, J.).
Boys will be boys. After she became the cafeteria manager in 2008, her estranged brother-in-law, a custodian at the school, allegedly began staring, leering, and gawking at the employee whenever he saw her. He would also snarl, grimace, and mumble in a menacing tone at her and at other female staff members and purportedly routinely and intentionally bumped a garbage can against her chair while she was seated in it. Although she reported his conduct to her supervisor and to the school principal, both allegedly responded "boys will be boys," "he’s harmless," and "that’s just how he is." When another cafeteria worker got the same response after she complained that his conduct frightened her, she resigned.
More intimidating. In 2016 and 2017, his conduct allegedly became more frequent and intimidating. In addition to staring, gawking, and snarling, the coworker forcefully pushed a garbage can into the employee from behind, almost knocking her over. He also used a leaf blower to blow trash and gravel onto her vehicle and the vehicles of other cafeteria workers and placed trash and paper under the windshield wipers of the employee’s and other women’s vehicles. On one occasion, while the employee was giving out Halloween candy to students, he forcefully grabbed the cart in her hands, jerked her out of the cafeteria doorway, and yelled "get you hind end out of the way and go do your job." On another occasion, he threw a garbage can toward her. The employee reported his continued bullying but no action was taken.
Not sexual in nature. In October 2017, the employee and two other female coworkers met with the supervisor to discuss the school’s response to their complaints. They were told the matter had been considered and no changes would be made. The employee then filed a written grievance, which was denied because the harassment and bullying was not sexual in nature. As a result, the employee resigned.
Hostile work environment. Considering the employee’s claims for sexual harassment creating a hostile work environment and sex-based discrimination creating a hostile work environment together, the court noted the board did not dispute that the coworker’s conduct was unwelcome. It argued, however, that the employee failed to show the conduct was sexual in nature or was because of her sex. Disagreeing, the court pointed out that she alleged his leering, snarling, and grimacing was directed at her and other female employees, he used a leaf blower to blow trash onto female employees’ vehicle, and other women were frightened by his conduct and joined her in complaining about it. At this stage in the proceedings, it was enough to support an inference that his conduct toward her was because of her sex.
And while the board also argued that he did not physically touch her, subject her to demeaning epithets, comment about her body, or show her graphic depictions of sexual acts, and there was no power disparity between the two, the court found the employee alleged the conduct occurred frequently and was physically threatening.
Employer’s liability. As to whether his conduct was imputable to it, the board pointed to the employee’s written grievance, which she alleged the board investigated but denied after determining that the conduct at issue was not sexual in nature. In light of this determination, the board argued, it was not required to take remedial action and was not negligent in controlling working conditions. Disagreeing, the court noted that an employer need only know of the harassment for the conduct to be imputed to it. Here, the board investigated the employee’s written grievance, failed to take any remedial action, and failed to investigate or take remedial action in response to her various verbal complaints regarding his conduct. Accordingly, she alleged facts making it plausible that the board was negligent in controlling working conditions and thus the coworker’s conduct could be imputed to it. Thus, the employee stated a hostile work environment claim against the board.
Constructive discharge. And while she also alleged that she was forced to quit as a result of the board’s failure to investigate and respond to her complaints, she failed to allege facts sufficient to show the board’s actions were intended to force her to quit. Indeed, observed the court, she alleged the board failed to act because it did not find that his conduct constituted harassment. She also alleged her supervisors responded to the complaints of her female coworker in the same way they responded to hers, which to the court made it less likely that the board’s intent in dismissing the complaints was to force the employee to resign.
The case is No. 1:18CV00048.
Attorneys: Mary Lynn Tate (Tate Law Firm) for Judy A. Atkins. Jennifer D. Royer (Royer Law Firm) for Smyth County Virginia School Board.
Companies: Smyth County Virginia School Board
Cases: SexDiscrimination SexualHarassment Discrimination Discharge StateLawClaims VirginiaNews
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