By Brandi O. Brown, J.D.
The alleged incident of harassment "certainly qualifies as egregious" and there were genuine issues regarding whether the hotel took prompt remedial action.
A newly hired hotel guest services representative, who alleged that a male coworker exposed his penis to her and tried to make her touch him, may proceed with her Title VII sexual harassment claim, a federal district court in Louisiana ruled. A genuine issue of fact existed regarding whether the incident was sufficiently severe to affect the terms and conditions of her employment and whether, in light of the fact that the coworker was allowed to have continued contact with her, the employer took prompt remedial action. Her retaliation claim—based on her termination fewer than two weeks later—can also advance. The defendant’s motion for summary judgment was denied (Brandon v. Woodspring Suites Shreveport-Bossier City L.L.C., April 13, 2020, Foote, E.).
Sexually assaulted. According to the employee, on her very first day at work as a "Guest Services Representative" in the employer’s Bossier City hotel she was sexually assaulted by a male coworker. He came into the laundry room where she was working and, after unsuccessfully asking her to say something sexy to him in Spanish, tried to show her a naked picture of himself on his cellphone. He continued to move toward her, even after she put a laundry bin between them. He told her to look at what she was "doing to him" and gestured towards his penis. He grabbed her arm and tried to make her touch him. He exposed himself to her and tried again to get her to touch him. He also tried to kiss her several times. Eventually she was able to get away and she left the laundry room.
Complained. The next day she met with management to discuss the incident. She asked not to be scheduled to work at the same time as the male coworker, but she was required to work with him that day. At some point, corporate management became involved. Written statements were taken from both the employee and her coworker, who resigned two days after the incident. However, he continued to come to the hotel, where he stayed overnight on several occasions, and he spoke to the employee. When she complained to the general manager about that, she was told to just keep working. At some point she learned that the coworker had done something similar to another female employee. The GM, however, appeared to believe the employee was making it up or had somehow brought it upon herself.
Fired. In fact, the employee alleged, the GM began retaliating against her, scheduling her to work back-to-back shifts and telling her about scheduled shifts at the last minute. All of that came to an end fewer than two weeks later, however, when she was taken off the schedule and never scheduled to work again. She filed suit alleging violations of Title VII and, after discovery, the employer filed a motion for summary judgment.
"Certainly qualifies as egregious." The employer argued that the single incident the employee described was not sufficiently severe or pervasive and that, in any event, it took prompt remedial action. The court was not persuaded and denied the motion with regard to the hostile work environment claim. A genuine issue of material fact existed regarding whether the single incident was sufficiently severe. Subjectively, the employee perceived it to be severe and her perception was objectively reasonable, the court explained. In fact, said the court, it was "obvious that such conduct could be perceived as physically threatening." The court explained that it was "obvious" that an encounter of the kind described by the employee would "unreasonably interfere with" her job performance if she had to continue working with the male coworker. Thus, the court found that the incident "certainly qualifies as egregious."
Insufficient remedial action? Moreover, under the standards established by the Fifth Circuit in Harvill v. Westward Communications, L.L.C., and other decisions from that court, separation would have been an "obvious remedial action" in response to the employee’s complaint. However, a factual dispute existed regarding whether the employer took appropriate measures to separate the two employees. Even though the employee had reported the incident, she and her coworker worked several hours together after she reported the incident and the employer did not dispute that he stayed overnight in the hotel following the incident. The employer also did not dispute that the coworker spoke to the employee at the front desk even after he was told to leave. Although the court did not consider it for purposes of deciding on the motion, there was also potential evidence that the employer was aware that another female employee had a similar experience with the male coworker.
Retaliation claim. As to the retaliation claim, which was based on the employee’s termination just a couple of weeks later, there was evidence of pretext regarding the employer’s asserted reason for firing the employee—that she failed to appear for two shifts. There was evidence that she was instructed not to come to work by the GM. There was also evidence that the GM might have deviated from the employers’ normal termination policies and procedures when he decided to terminate the employee, as alluded to by an email from a HR manager at the time. And there were additional reasons for termination noted on the personnel form used by the GM that were unexplained, including "insubordination, misconduct, and dishonesty." Along with the temporal proximity between the employee’s protected activity and her termination, the court concluded that a genuine issue of material fact existed for trial.
The case is No. 18-848.
Attorneys: Allison Anne Jones (Downer, Jones, Marino & Wilhite) for Quawana Brandon. Jeffrey A. Riggs (Lewis Brisbois Bisgaard & Smith) for Nationwide Hotel Management Co. LLC.
Companies: Nationwide Hotel Management Co. LLC; Woodspring Suites Shreveport-Bossier City L.L.C
Cases: SexualHarassment Discrimination Retaliation Discharge GCNNews LouisianaNews
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