She failed to show the alleged harassment—there was only one "intimate" touching—was objectively severe or pervasive or to present sufficient evidence of pretext.
Not only did an administrative assistant for a nonprofit company that provides services to mentally ill individuals fail to show the alleged sexual harassment by a client—she claimed that amongst other things he touched her breast once—was sufficiently severe or pervasive, her employer took remedial action the day after she reported the harassment and thus her Title VII hostile environment claim failed at summary judgment. And even though she was fired just two weeks after reporting the harassment, her retaliation claim failed as well, ruled a federal court in Louisiana, as there was no other significant evidence to show her employer’s stated reasons for her termination—violating the company’s confidentiality policy and failing to timely locate a file—were pretextual (Pritchard v. Merakey Pennsylvania, January 16, 2020, Foote, E.).
Confidential information. Six years after she was hired, the employee began receiving various disciplinary actions for performance related issues including a "supervision record" in May 2017, a "1st level counseling" in July, and a "final counseling" in August. In November, an assistant state director received two separate reports that a client told staff members the employee had revealed confidential information about staffing decisions. After receiving the second report, the assistant director asked the program director to gather written statements from the staff members as she planned to fire the employee.
Harassment. That same afternoon, the employee claimed, the client touched her breast in the parking lot. Further, she alleged, he had been sexually harassing her since May and although she had reported his conduct to the program director, no action had been taken. The next day, the employee told the state director about the client’s alleged harassment, informed him that she had PTSD, and requested several days off.
Remedial measures. The day following her report to the state director, the employer held a meeting with the employee and management to discuss ways to ensure she felt safe returning to work, including implementing a "code word system" and placing a lock on her door. When the employee returned to work 10 days later, she was asked to locate a misplaced file, which she did by the end of the next day.
Termination. When the client came to the facility for scheduled therapy two days later, the employee went to the program director’s office to avoid him. The next day, she received a memorandum detailing additional protective measures, including the installation of a plexiglass window in the lobby wall and approval for her to work in the chart room. She was fired the following day for multiple disclosures of confidential information and the failure to timely locate the missing file.
Sexual harassment. The court first found a fact issue regarding how the employee subjectively perceived the client’s actions. She alleged that as a result of him touching her breast, her PTSD was reaggravated, she had increased depression, anxiety, crying spells, flashbacks, and nightmares, and she had to take an antidepressant. From this, said the court, a jury could find she perceived his actions to be severe or pervasive enough to alter her employment conditions.
But in evaluating the objective reasonableness of his conduct, the court found the alleged harassment was not sufficiently severe or pervasive. The employee claimed that over a seven-month period, he rested his chin on top of her head at least five times, rubbed his face against hers one time, grabbed her hand to have her feel his beard once, cupped her breast once, and hugged her and kissed the top of her head an unspecified number of times. Noting that she did not allege any inappropriate comments by him and only one intimate touching, the court found this was not enough to survive summary judgment.
Remedial actions. And even if it were, the day after the employee reported that the client had inappropriately touched her, the employer held a meeting with her to discuss actions it could take to ensure she felt safe. And while she sought refuge in her supervisor’s office when the client returned to the worksite, this did not mean its actions were not reasonable, said the court, just that not enough time had passed for it to have implemented all the safety measure. Further, observed the court, the employee did not use one of the implemented measures—the code word system.
Retaliation. As to the employee’s retaliation claim, the court first rejected the employer’s contention that she did not engage in protected activity when she reported harassment by a client. Finding this unsupported by caselaw, the court pointed to Cain v. Blackwell, in which the Fifth Circuit held that an in-home care provider reporting inappropriate sexual comments made to her by a client was a protected activity.
Also rejected was the employer’s contention that the employee failed to show a causal connection between reporting the client’s alleged harassment and her termination. Here, said the court, the two weeks between her protected activity and her termination was enough to create a fact dispute sufficient to support her prima facie case.
Pretext. But the employee failed to establish other significant evidence of pretext. She argued that the letters about the incidents allegedly involving her were written after she reported that the client had touched her breast, that they at most "alluded" to her as the person telling the client confidential information, and that she located the missing file within a time that had been acceptable in the past. She did not, however, present any evidence disputing that the assistant director was aware of reports about her disclosing confidential information on the morning before she reported that the client had touched her. Nor did she have evidence to refute that it was at this time the assistant director decided that terminating her was proper. "At most," said the court, she "established temporal proximity, a minor dispute over the acceptable amount of time to locate a missing file, and a challenge to the evidentiary sufficiency of written statements," which was not enough to establish pretext.
The case is No. 5:18-CV-1403.
Attorneys: Deborah Shea Baukman (Mayer, Smith & Roberts) for Stephanie Pritchard. Susan F. Desmond (Jackson Lewis) for Merakey Pennsylvania.
Companies: Merakey Pennsylvania
Cases: SexualHarassment SexDiscrimination Discrimination Retaliation PennsylvaniaNews
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