Employee who reported supervisor’s conduct several times advances hostile environment claim
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Tuesday, September 10, 2019

Employee who reported supervisor’s conduct several times advances hostile environment claim

By Tulay Turan, J.D.

The employee testified the supervisor commented on her breasts and told her he would like to bend her over a stripper pole. He also made sexual hand gestures towards her and showed her unsolicited pictures of him exposing himself.

Denying an employer’s motion for summary judgment on a pregnant, African-American employee’s Title VII hostile work environment and state-law tort claims, a federal district court in Alabama found genuine issues of material fact existed because evidence showed she suffered sufficiently offensive sexual harassment and reported it to the employer, but the employer failed to take corrective action. The court dismissed her claims for retaliation and discrimination on the basis of race, sex, and pregnancy, however, because there was no evidence she suffered an adverse employment action (Young v. AlaTrade Foods, LLC, September 6, 2019, Bowdre, K.).

In August 2016, the employee began working full time on the production line separating chicken at AlaTrade’s chicken processing facility. About a month later, she requested to work part time, and AlaTrade granted her request, transferring her to another position. Soon after that, AlaTrade transferred her to the box room where she assembled boxes to hold chicken.

Inappropriate comments. In January 2017, the employee discovered she was pregnant with twins. She asked the box room supervisor for a pregnancy-related accommodation of not having to climb ladders to retrieve boxes, but he never acted on her request. The chicken deboning line supervisor began visiting the employee in the box room. He struck up casual conversation with her at first, but, over time, his statements grew more inappropriate and ultimately turned sexually explicit and offensive. He twice tried to convince her to leave the plant with him to "have a sexual encounter" and proposed they take off work every other Wednesday to "get together." He also made sexual hand gestures with his smock in front of her and made comments about her breasts.

Reported harassment. The employee complained to her supervisor about the line supervisor sexually harassing her, but the harassment did not stop. Her coworker in the box room testified that the line supervisor visited the employee two to three times a week. On one occasion, he pointed out a pole in the box room, talked to her about strippers, and made a comment about bending her over a pole. She testified she again complained about the sexual harassment and reported the pole comments, but the harassment continued. Later, she also reported the harassment to a vice president.

Transferred, then left work. On May 17, 2017, the box room supervisor told the employee that AlaTrade was transferring her out of the box room and placing her back on the chicken production line. She told him she could not work on the line anymore because she had vertigo and had to stand too far back from the table because of her pregnancy. The supervisor would not accept her stated limitations and responded, "either do what I tell you to do or go home." She left the facility and considered herself terminated. When she called the staffing agency that had placed her at AlaTrade to inquire about her final paycheck, her contact told her that Alatrade ‘[did not] want [her] back on the premises" because she "got terminated for insubordination and misconduct." AlaTrade reported on a separation form that she quit due to the transfer out of the box room.

Eight claims. The employee brought eight claims arising out of the alleged harassment and termination or constructive discharge. She brought five employment discrimination claims under Title VII: hostile work environment based on sexual harassment, retaliation for complaining about sexual harassment, and discrimination on the basis of sex, pregnancy, and race. She also brought three tort claims under Alabama law: invasion of privacy: assault and battery; and negligent and/or wanton hiring, supervision, training, and/or retention.

Was harassment sufficiently severe? After noting the employee met the first three elements of a hostile work environment claim based on sexual harassment, the court found a genuine issue of material fact existed as to whether the line supervisor’s alleged harassment was sufficiently severe or pervasive to alter the terms and conditions of her employment. The evidence showed the harassment was frequent; she testified that the line supervisor harassed her from December 2016 to May 2017, and her coworker testified he visited the box room two to three times a day only when the employee worked. In addition, the totality of the conduct was objectively hostile. She testified he made several sexually offensive remarks and gestures to her and propositioned her for sex.

Regarding the fifth element, which requires a basis for holding the employer liable, the court found the evidence showed AlaTrade knew or should have known about the alleged sexual harassment and failed to take any remedial actions. She reported the conduct at least three times, but AlaTrade never intervened and the harassment continued until the company transferred her out of the box room. Thus, reasonable jurors could find that a basis exists for holding AlaTrade liable for the sexual harassment. Because genuine issues of material fact exist as to these elements, the court denied the employer’s motion for summary judgment on the harassment claim.

No adverse employment action. Turning to the retaliation claim, the court granted summary judgment to the employer because no genuine dispute existed as to whether she suffered an adverse employment action. The employee’s version of the facts of her last day failed to show termination. Her supervisor’s statements only showed that he told her to go home after she refused to work her new assignment; they did not support a reasonable inference that AlaTrade terminated her employment. In addition, the employee’s testimony concerning the phone call with her staffing agency contact was only hearsay evidence of someone else’s opinion about what happened to her. Further, the employee herself admitted that she quit on her EEOC intake questionnaire.

The court also rejected the employee’s argument that the company constructively discharged her because it assigned her to a job she physically could not perform, thus leaving her no choice but to resign. She testified she had vertigo that caused her to vomit on one occasion when she worked on the chicken production line before AlaTrade transferred her to the box room. But "a single instance of vomiting does not support a reasonable inference that she could not work on the chicken production line at all months later," wrote the court. She also testified that, because her pregnancy was showing in May 2017, she would have to stand back from the line and could not do her job efficiently. "No reasonable juror could find that only having to stand back from the line and work inefficiently would compel any pregnant person to resign," according to the court.

Sex/pregnancy/race discrimination. The court also granted summary judgment for AlaTrade on the employee’s discrimination claims because there was no genuine dispute of material fact as to whether she suffered an adverse employment action as previously discussed.

Sufficient evidence of invasion of privacy. Next, the court turned to the state-law claims, finding that reasonable jurors could determine from the employee’s testimony that the line supervisor committed an "offensive or objectionable prying or intrusion into [her] private affairs or concerns" and thus committed invasion of privacy. She testified to egregious sexual harassment that was similar to the harassment in several Alabama Supreme Court cases that constituted sufficient evidence of invasion of privacy under Alabama law. She testified the supervisor commented on her breasts and told her he would like to bend her over a stripper pole. He also made sexual hand gestures towards her, propositioned her for sex, and showed her unsolicited pictures of him exposing himself.

The court also found there was a genuine issue of material fact regarding AlaTrade’s vicarious liability for the invasion of privacy. The employee reported her harasser several times, but AlaTrade took no action. Thus, the court denied the employer’s motion for summary judgment on this claim.

Issues exist about assault and battery. The court also found that a genuine dispute of fact existed as to whether the line supervisor committed an assault and battery. The employee testified he intentionally touched or grazed, but did not grab, her buttocks, grabbed her from behind, and touched her back and arms. She did not welcome these sexually-charged touches. The court also found, as discussed above, there was a genuine issue as to AlaTrade’s liability. Thus, the court denied the employer’s motion for summary judgment on this claim.

Negligent hiring also survives. Finally, the court found a genuine dispute of material fact existed as to the employee’s negligent and/or wanton hiring, supervision, training, and/or retention claim because reasonable jurors could conclude that AlaTrade had notice of the line supervisor’s unfitness and recklessly failed to take any corrective action.

The case is No. 2:18-CV-00455-KOB.

Attorneys: Jon C. Goldfarb (Wiggins Childs Pantazis Fisher & Goldfarb) for Judy Young. Chad A. Shultz (Gordon Rees Scully & Mansukhani) for AlaTrade Foods LLC.

Companies: AlaTrade Foods LLC

Cases: RaceDiscrimination PregnancyDiscrimination SexualHarassment StateLawClaims TortClaims Discrimination AlabamaNews

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