Outdoor laborer with bronchitis gets trial on disability, sexual harassment claims
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Friday, July 30, 2021

Outdoor laborer with bronchitis gets trial on disability, sexual harassment claims

By Brandi O. Brown, J.D.

During her year of employment, she was hospitalized twice for bronchitis but still required to work in all types of weather without protective gear; she also described repeated vulgar sexual comments and propositioning by her supervisor.

All Title VII, ADA, and PHRA claims put forward by an employee for a facility support maintenance provider, whether contested by the employer or not, can go before a jury, a federal district court in Pennsylvania concluded. The employee contended that, even though she was twice hospitalized for bronchitis, her requests for protective equipment and other accommodations were denied and she was told she was causing trouble by asking. She can also present to a jury evidence that despite repeatedly reporting her supervisor’s behavior, which included asking her things like "How do you like your p*ssy ate" and showing up at her home, her employer not only failed to act, but also retaliated (and allowed the supervisor to retaliate) against her (Wilson v. Industrial Commercial Cleaning Group, Inc., July 28, 2021, Surrick, R.).

Industrial Commercial Cleaning Group provides full-service facility support maintenance. In July 2017, the employee was hired as a laborer and assigned to a trash and debris cleaning crew working on a project for the College of New Jersey.

Recurring infections. When exposed to certain conditions, including working in certain outdoor environments, the employee, who suffers from bronchitis, experiences severe respiratory issues. Aware of this, she requested protective equipment such as a mask, a jacket, or coveralls. She asked her supervisor about it, as well as the janitorial supervisor and, ultimately, one of the spouses who run the company. The spouse, a "consultant" to the company, told her that she was causing trouble because no one had ever asked for an accommodation. She was not given the equipment and was also forced to work in rain and cold weather. As a result, she developed two chest infections requiring hospitalization in September 2017 and January 2018.

Supervisor’s inappropriate questions. Not only did she struggle with the environmental conditions, but the employee alleged that she struggled with other conditions as well. Specifically, she contended that her supervisor repeatedly asked her sexual questions and made comments, such as asking her: "Do you shave your p*ssy?" and "Do you like big d*cks?" He also asked her about her relationship with her girlfriend and about their sex life. He told her that she was "sexy" every time she smiled. Although she told him not to say things like that to her, and although other employees who were not targeted by his comments also approached him about his conduct, he persisted.

Reports to no avail. She reported his conduct to the janitorial supervisor, as well as both spouses, one of whom was the CEO of the company. Nothing changed. She also never received a copy of the employer’s sexual harassment policy, even though she requested it several times. Finally, in October 2017, after the supervisor showed up at her house to tell her he wanted her to be his "pretty young thing," she rejected his advance. A coworker testified that his behavior toward the employee went from "real good to real bad" and that something had "happened after work or something like that."

Write ups and removal. On January 12, the employee was working outside when it began to rain. She requested to leave because of her medical condition and the supervisor told her she could. Nevertheless, a few days later, he reported her for walking off the job and she was suspended by the employer. One week later, she met with both spouses and both supervisors and reported her direct supervisor’s harassment again. She was assigned to a different work crew while the employer investigated. However, it found that her complaint was unsubstantiated. Thereafter, she was written up repeatedly and reported by her supervisor on several occasions for insubordination. In May, the CEO decided to look into her allegation of harassment again and the employer decided to fire the supervisor.

Filed suit. In July, however, the employer contended that the client asked that the employee be removed from the contract because she refused to work under normal working conditions. She was offered other positions that were available, but both had long commutes. Her employment ended in August. She filed suit alleging: (1) discrimination, harassment, and retaliation under Title VII; (2) discrimination, harassment, retaliation, failure to accommodate, and failure to engage in the interactive process under the ADA; and (3) discrimination, harassment, retaliation, failure to accommodate, and failure to engage in the interactive process under the PHRA. Regarding the PHRA claim, she named as defendants the employer and both spouses. Ultimately, the defendants moved for summary judgment on many of the claims.

HWE. Although the employer conceded that disputes of fact existed regarding whether the supervisor sexually harassed the employee and whether that harassment was pervasive and regular, it argued that his conduct did not "detrimentally affect" her and that she could not establish respondeat superior liability. However, the court concluded that she raised a genuine issue of material fact on those elements as well. A reasonable fact finder could infer that the supervisor’s conduct detrimentally affected the employee and would have impacted a reasonable person under the circumstances. In fact, the evidence in the record showed that she routinely made her feelings about the conduct clear, telling him to stop and making several attempts to report the behavior. Moreover, the court noted, other employees also felt the need to approach the supervisor about his conduct regarding the employee.

The record also demonstrated respondeat superior liability, the court concluded. The employee testified that she reported the harassment on multiple occasions and that the janitorial supervisor reported on her behalf as well. She also testified that she was not given information on how to lodge a formal complaint. This was sufficient for a jury to conclude that the employer had notice or that it failed to provide a reasonable avenue for her to complain.

Retaliation. Regarding her claim of retaliation under Title VII relating to her complaints of harassment, the court noted the employer did not dispute that the employee suffered an adverse employment action when she was removed from the trash and debris crew. Instead, it argued that it lacked knowledge of her protected activity and that there was no causal connection. The evidence, however, sufficiently supported her claim. Following her complaints, the employee contended, she was suspended, written up, and denied overtime work. After her final rejection, moreover, the supervisor complained about her work habits and claimed she was insubordinate. Another employee testified about noting the change in her treatment. A jury could make the necessary inferences from this evidence, the court concluded.

Disability related claims. Regarding the employee’s claims under the ADA, the court likewise ruled against the employer. First, the question of whether she suffered from a disability was one for a jury. The employer conceded that bronchitis affects breathing and that breathing is a major life activity. It argued that it did not substantially limit her breathing, however, because it was a short-term, non-chronic impairment. "There is nothing in the ADA that delineates chronic from non-chronic impairments," the court explained, rejecting that argument, and there was sufficient evidence to support a finding that she suffers from a disability.

Working in all conditions essential? The employer also argued that she could not establish that she was a qualified individual with a disability because her bronchitis did not entitle her to a reasonable accommodation. Specifically, the employer argued that it was an essential function of her job on the trash and debris crew to work outside in all weather conditions, as the job description for her position specified. However, the job description alone was not dispositive, the court explained, and whether it was an essential function was a close question of fact for the jury.

Even if the jury determined that working in all weather conditions was an essential part of her job, it had to determine whether she could still perform that function with or without a reasonable accommodation, which in this case would have been the protection she testified that she requested. Finally, the employer disputed that the employee requested an accommodation, but there was evidence supporting the employee’s claim that she did.

Regarding pretext, the employee presented evidence supporting her argument that, rather than the client’s request, the decision to remove her was because she was causing trouble by asking for accommodations. Additionally, the positions the employer offered the employee cast doubt on its legitimate nondiscriminatory reasons.

Her other claims, including ADA retaliation and PHRA aiding and abetting, likewise could go before a jury based on the evidence presented, the court concluded.

The case is No. 19-2198.

Attorneys: Christopher A. Macey Jr. (Bell & Bell) for Shelby Wilson. Sidney L. Gold (Sidney L. Gold & Associates) for Industrial Commercial Cleaning Group, Inc.

Companies: Industrial Commercial Cleaning Group, Inc.

Cases: Discrimination SexualHarassment DisabilityDiscrimination Retaliation StateLawClaims Discharge GCNNews PennsylvaniaNews

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