GM’s language, antagonism toward women support female sales consultant’s bias claims
Thursday, July 11, 2019

GM’s language, antagonism toward women support female sales consultant’s bias claims

By Kathleen Kapusta, J.D.

Although the employee did not report the GM’s conduct, evidence that an owner, and an HR staff member, may have known of his behavior called into question whether the employer took reasonable care to prevent and correct the harassment.

Noting that 55 years after the enactment of Title VII, it was faced "with a high-level manager who was making near daily gratuitous sexual and misogynistic comments to his underlings at the auto dealership location he managed, and business owners who, a jury may well find, allowed him to continue these acts unheeded," a federal court in Pennsylvania denied summary judgment against a female sales consultant’s disparate treatment and hostile work environment claims. Not only did a fact question exist as to whether an across-the-board pay change was directed at the employee, the lone female salesperson, the court also found, based on a totality of the circumstances, that the work environment was severely and pervasively sexually hostile (Rorke v. Aubrey Alexander Toyota, July 10, 2019, Brann, M.).

Although the employee initially "enjoyed going to work every day," things changed when a new general manager took over the car dealership. Not only did he allegedly call both male and female sales consultants "assclowns" and "dickheads," directing them to "grow a set of balls," he was, the employee claimed, obsessed with discussing the sex lives of male employees.

Pop tart, toots, and worse. The GM would also use the acronym "POTP," the employee and others claimed, once purportedly saying about the employee "Well I can tell you what’s wrong down there, there’s too much POTP." When a coworker reluctantly told the employee that POTP meant "power of the p***y," she stated that it was the most humiliating moment of her life. The GM also allegedly referred to female employees as "Toots," described his wife and another employee’s wife as "crazy bitches," frequently called another female employee "Pop Tart," and constantly tried to make another female worker cry.

New pay plan. Prior to the GM taking over, the employee had been told she would not have to pay back her draw if she sold 10 cars per month. Sometime after the new GM took over, however, he told all sales consultants that pursuant to a new pay plan, those that sold 20 or 25 cars could keep the draw. According to the employee, the GM, in an attempt to bully her, also denied her vacation request, changed her day off, and made it difficult for her to receive an unused vacation time payout.

Never complained. She ultimately quit, stating that the "pressure every day of going to work and being on egg shells is unbelievable." She never reported the GM’s conduct to any supervisors or the dealership’s owners, claiming she feared for her job and believed the owners and other managers knew about the GM’s behavior and chose to ignore it.

Adverse action. At issue in the employee’s gender discrimination claim was whether she suffered an adverse employment action giving rise to an inference of unlawful discrimination. And here, said the court, there was evidence clearly demonstrating that since 2008, the employee enjoyed a benefit that other sales consultants did not—she was able to retain her commission draw if she sold a mere 10 cars per month. In January 2015, however, the GM changed the salary structure across the board for all employees so that the sales consultants could only keep their draw if they sold 20-25 cars per month.

Intentional antagonization? Noting that the prima facie case and pretext inquiries often overlap and that a court can skip the prima facie case analysis and proceed directly to the evaluation of pretext if the defendant offers a nondiscriminatory explanation for its employment decision, the court found the record here replete with evidence that the GM intentionally antagonized women. Denying summary judgment on this claim, it explained that the question for the jury would be whether the motive behind the pay structure change was really intended as an across-the-board policy, or if, because the employee was the only one at the time who benefitted prior to the policy change and was detrimentally affected after the change, this was another of the GM’s intentional antagonizations directed at her—the lone female salesperson.

Hostile work environment. Turning to the employee’s hostile work environment claim, the court found that the totality of the circumstances surrounding the work environment created by the GM was severely and pervasively sexually hostile. Not only was there evidence he used the word "p***y" on numerous occasions, he called women "crazy bitch," "dumb bitch," "Toots," hooker, and "Pop Tart;" called employees "dickheads" and advised them to "grow a set of balls;" asked a male employee at morning sales meetings about his sex life; and told multiple employees to "get good at sucking dick, so that way you’d have something warm in your belly in the unemployment line."

Ellerth/Faragher affirmative defense. Nor was the employer entitled to summary judgment based on the Ellerth/Faragher affirmative defense. While it pointed to its employee handbook, which set forth a grievance procedure, there was evidence that the patriarch of the family who owned the dealership, along with a staff member from HR, knew of at least some of the GM’s behavior, which called into question whether the dealership took reasonable care to prevent and correct the harassment.

The case is No. 4:16-CV-00219.

Attorneys: W. Charles Sipio (Kolman Ely) for Kim Rorke. Dean F. Piermattei (Pillar+Aught) for Aubrey Alexander Toyota.

Companies: Aubrey Alexander Toyota

Cases: SexDiscrimination SexualHarassment Discrimination PennsylvaniaNews

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