By Tulay Turan, J.D.
The allegations were not frequent because she only alleged five incidents over the course of at least 26 months and the supervisor admitted that the incidents did not interfere with her performance.
UPS was entitled to summary judgment on a female on-road supervisor’s gender discrimination and retaliation claims because she did not suffer an adverse employment action where she was promoted and given a raise soon after complaining about her supervisor saying she had committed "career suicide" for reporting him to HR, a federal district court in New Jersey ruled. The court also granted UPS’s motion for summary judgment on her hostile work environment claims where the allegations against her supervisor were not frequent or severe and did not interfere with her work performance (Henderson v. United Parcel Service, April 27, 2020, Hillman, N.).
Security department positions. UPS hired the employee as an administrative assistant in 2006. She worked in various part-time roles until February 2014, when she took a full-time position as a security specialist. At that time, Larry Gaines, whose workplace actions led to her lawsuit, was a security supervisor at the same facility. In September 2014, the employee was promoted to security supervisor. In April 2015, Gaines was promoted to security manager and became her boss.
HWE allegations. From April 2015 to January 2016, the employee alleged Gaines made three comments she believed were inappropriate and created a hostile work environment. He said, "I think you’re a bisexual" and "I would consider us both attractive people, wouldn’t you say?" Also, when a co-worker made a joke about Gaines being a married man, Gaines responded the comment was "below the belt" and thrusted his pelvic area. The employee witnessed this gesture.
Reported to HR. In January 2016, the employee told her former supervisor about Gaines’ comments; they contacted Gaines’ supervisor and set up a meeting with HR. After HR investigated, Gaines was counseled about the company’s anti–harassment policy, which HR required him to read and sign. In April 2016, the employee met with Gaines to discuss her career development. In the meeting, he said she was committing "career suicide" for reporting him. In September 2016, the employee met with HR again and reported the comment. HR met with Gaines who denied making it. The area HR manager told the district manager who met with the employee and asked what the company could do to make her more comfortable.
Promotion and raise. In November 2016, per the employee’s suggestion, she was transferred out of the security department and was promoted to an on-road supervisor position. The promotion also resulted in a raise. The new position required training at the Lawnside facility where Gaines still had security responsibilities and an office. That facility had an employee parking lot in which hundreds of UPS employees parked. The employee alleged Gaines’ car was parked near hers on twelve occasions as a retaliation tactic, but after she reported it to HR, she never saw his car near hers again.
Charges filed. In August 2016, the employee filed an EEOC charge alleging hostile work environment based on sexual harassment and retaliation for complaining about the harassment. The EEOC was unable to conclude the information in the charge established violations of the relevant statutes. In December 2017, she filed this six-count complaint, alleging gender discrimination, sexual harassment in the form of hostile work environment, and retaliation all in violation of both Title VII and the NJLAD. In June 2019, UPS filed this motion for summary judgment.
No adverse employment action. The court granted UPS’s motion for summary judgment on the employee’s retaliation and gender discrimination claims because she failed to make out a prima facie case. She did not satisfy the adverse employment action requirement for either claim under Title VII or the NJLAD. Gaines’ comment to her that she was committing "career suicide" did not constitute an adverse employment action. The court distinguished the one case the employee cited in support of her argument. In Rivera v. Rochester Genesee Reg’l Transp. Auth., the Second Circuit ruled summary judgment was inappropriate given the totality of the circumstances in that case. Similar circumstances were not present here. The employee pointed to only one instance of alleged retaliation. In addition, rather than suffering any adverse employment actions, such as the admonishment the plaintiff in Rivera received, she received a promotion and raise virtually immediately after she complained about the alleged retaliation. Here, the alleged retaliation did not produce any injury or harm.
Incidents not frequent or severe. The employee also failed to establish a prima facie case for a hostile work environment sexual harassment claim under both Title VII and the NJLAD. The allegations were not frequent because she only alleged five incidents over the course of at least 26 months. They were not severe, physically threatening or humiliating, but rather "merely offensive utterances." The employee admitted Gaines never physically touched her. In addition, she admitted the incidents did not interfere with her work performance. If the allegations were true, they were at best socially unacceptable but insufficient to meet the high burden of severe or pervasive harassment required for a successful hostile work environment sex discrimination claim. Thus, the court granted UPS’s motion for summary judgment on these claims.
The case is No. 1:17-cv-13059-NLH-KMW.
Attorneys: Sarah R. Lavelle (Comeau & Bunker) and David Mikel Koller (Koller Law PC) for Rashedah Henderson. Joseph C. DeBlasio (Jackson Lewis P.C.) and Luke P. Breslin (Jackson Lewis P.C.) for United Parcel Service.
Companies: United Parcel Service
Cases: Discrimination Retaliation SexualHarassment SexDiscrimination StateLawClaims NewJerseyNews GCNNews
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