By WK Editorial Staff
Neither the company nor the EEOC were going to get summary judgment given the significant disputes as to whether the alleged harassment was sufficiently severe, as well as why all the workers were fired.
A federal district court in Michigan denied an employer’s motion for summary judgment against the EEOC’s Title VII sexual harassment and retaliation claims brought on behalf of two female employees, who alleged a team leader engaged in ongoing and continual harassment including unwanted physical touching, and the two more employees who, along with the complainants, were all terminated within days of complaining or corroborating those complaints. The EEOC had detailed evidence creating fact issues to whether the harassment was severe and pervasive enough to constitute a hostile work environment; there was evidence the employer had direct knowledge of the coworker’s harassing conduct; all the employees were fired almost immediately after complaining; and the pretext evidence the EEOC presented diverged wildly from the employer’s stated rationale for firing the workers. And while the EEOC also moved for partial summary judgment as to liability, those same fact issues precluded summary judgment for it as well (EEOC v. Safie Specialty Foods Co., Inc., November 5, 2019, Cox, S.).
Repeated sexual overtures by co-worker. The EEOC asserted hostile environment sexual harassment claims on behalf of a production worker and a temporary worker hired through a staffing company, as well as retaliation claims on behalf of the two harassed workers and the other workers who were fired following complaints about the misconduct. The alleged harasser, the factory team lead for cooks, had a long history of making unwanted sexual comments and gestures to female employees; he also allegedly pressured a male temporary worker to take a female out to lunch and tell her how much the cook loved her. Additional and significantly more vulgar conduct, including unwanted physical touching, was reported in testimony presented by the EEOC.
Employer responses. The team lead’s wife was the Quality Assurance/Production Manager, who allegedly witnessed many episodes of her husband’s harassment and at times told him to cease his conduct, but she never acted to stop him, even though she was frequently close by and in plain sight of him while he was acting inappropriately. One worker testified that when she did try to report the cook’s behavior directly to the company president, her report was not well-received; she was told that it "would be handled" and to leave it alone, but the president also told her to get out of her office and called her a profanity (something the president allegedly called "everyone").
When the team lead ordered one temporary worker to meet him on a Sunday—while the facility was closed—in the parking lot for something he "could not do at work," after having propositioned her for sex on multiple occasions, she reported it to her supervisor. Her supervisor then replied, "oh my God, he is at it again." There was evidence that two temporary employees who complained, a production employee who complained, and the supervisor who brought the temporary worker’s harassment complaint forward all were terminated either as of the next working day or within days of complaining.
Not severe? In arguing for summary judgment on the hostile work environment claims, the employer contended that the reported conduct was not sufficiently severe—merely offensive—and did not create a hostile work environment and that there was no employer liability for the offending worker’s conduct (he was fired weeks after one of the complaining and fired workers filed an EEOC charge of discrimination).
Hostile environment a question of fact. Whether harassment is so severe and pervasive as to constitute a hostile work environment is "quintessentially a question of fact," quoted the court. Courts look at the totality of the circumstances, and a fact-finder must evaluate the conduct at issue by both an objective and subjective standard. Here, the EEOC had submitted detailed factual declarations from workers claiming that the sexual harassment from the team lead was ongoing and continual, including physical touching and "invasion" of personal space. This was clearly enough to take the hostile work environment claim to the jury, the court concluded, denying summary judgment to the employer.
Employer liability. Because the case involved coworker harassment, employer liability turned on whether the company knew or should have known about the team lead’s harassment—and its response to it. The EEOC presented evidence to show that, prior to the alleged conduct with the two workers on whose behalf the agency sued, the team lead had engaged in sexual harassment at the workplace of which at least two supervisors were aware—and that supervisors and employees were discouraged from reporting misconduct to the company president. Further evidence by the EEOC showed that the alleged harasser’s wife—a supervisor for the company—witnessed that conduct and failed to do anything about it. That created an issue of fact at to employer liability.
Retaliation claims. As to the EEOC’s retaliation claims for the four fired employees, the terminations occurred so soon after the protected activity "that there was virtually no subsequent work time periods during which any other incidents indicative of retaliation could have occurred," noted the court. The male temp worker was told his "services were no longer needed" just two hours after he provided information to the company about the harassment. The supervisor was suspended the very day that she forwarded one employee’s sexual harassment complaint to the company—she never worked at the company after making the protected report, and the same was true for the worker whose complaint she forwarded. In fact, the longest gap between protected activity and termination was two days for the employee who corroborated her coworker’s harassment complaint.
Everyone who complained was let go. Beyond that temporal proximity, there was more evidence of causation, said the court, stressing that "the employee making the complaint, the supervisor who reported that complaint to the company, and the two employees who corroborated the complaint were all suspended or terminated within hours or days of their related protected activity." There were other examples too, to permit an inference of causation.
Pretext. The company claimed that the two employees identified to the president by the supervisor as being aware of the harasser’s behavior were let go because of a drop in seasonal sales. But the EEOC had evidence that the company "terminated the assignments of these experienced workers based on alleged production needs, yet kept other, less experienced workers who had not engaged in protected activity"—and the president called the staffing company herself to cancel their assignments. This could be construed as evidence of pretext, said the court.
Moreover, the other terminated employee was fired, but her termination letter stated no reason—and the company claimed that she had been disruptive by getting into physical altercations with a coworker. However, the EEOC submitted evidence the employee was never told that she was being fired or suspended because of anything having to do the coworker, and there was no evidence that there had been any altercation with the coworker. Instead, the employee’s evidence was that the alleged meeting about the altercation actually involved her reports of the sexual harassment complaint. The court was also troubled by the president’s testimony as to why this employee was fired, which had suggested that the employee "created a ‘hostile work environment’ by virtue of getting hit and kicked by a co-worker and not doing anything about it." That too could be pretextual.
Finally, the court found evidence to cast doubt on the company’s claims that the supervisor was terminated because she did not promptly report the harassment report she received—which she reported as soon as possible given the plant was closed due to inclement weather the day after she received the report, and she reported the harassment report the following morning. She was then suspended that day, for having not brought the complaint sooner.
But all these fact issues precluded the EEOC’s motion for partial summary judgment as to liability.
The case is No.: 2:18-cv-13270-SFC-MKM.
Attorneys: Karen Brooks for EEOC. James R. Acho (Cummings, McClorey, Davis & Acho, P.L.C.) for Safie Specialty Foods Co., Inc.
Companies: Safie Specialty Foods Co., Inc.
Cases: Discharge SexualHarassment Discrimination SexDiscrimination Retaliation MichiganNews
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