Sales rep who rejected COO’s advances and marriage proposal will get trial on harassment claims
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Wednesday, December 16, 2020

Sales rep who rejected COO’s advances and marriage proposal will get trial on harassment claims

By Brandi O. Brown, J.D.

After failing at his campaign to win her affections, evidence suggested that he started a new campaign to undermine and fire her.

An employee who alleged that a company owner’s months-long romantic pursuit of her morphed overnight into a campaign to fire her after he was rebuffed, will take her harassment and retaliation claims to trial, ruled a federal district court in Virginia. The substantial disparity of power between their positions in the company was a key factor with respect to the sexual harassment claim, while the stark change in his attitude towards her after she refused his proposal aided the court in its decision to deny summary judgment on the retaliation claim. Accordingly, the employer’s motion for summary judgment was denied (Coates v. Suthars, Inc., December 14, 2020, Cullen, T.).

She says "no" to COO. Shortly after she graduated from college the employee applied for a sales representative position with the employer, a large compounding pharmacy and drug manufacturer. The decision to hire her in June 2017 was made solely by the COO, who was a part-owner and son of the company’s founder and CEO. He effectively acted as her day-to-day supervisor and soon he made it known to her that he had romantic feelings towards her. He told her that he enjoyed watching her and that he probably liked her "too much." Even though she declined his initial request to go on a date, he continued to ask her out, including asking her to travel with him. She testified that his advances "creeped [her] out" and made her uncomfortable. She noticed that his attitude towards her work would sour each time she declined, but he did not stop asking.

He doubles down with marriage proposal. In October, while they were at a professional event together, he became intoxicated and texted her that she "shouldn’t be expecting him to wear pants at breakfast the next morning." The next day he overheard her talking with another employee, the pharmacist-in-charge, about her relationship status and, according to the pharmacist’s testimony, he "blew a gasket." Finally, in January, he made one final romantic overture at what was supposed to be a work dinner. He told her he wanted her to marry him, have his children, and build an "empire" with him. She testified that she reminded him that she had a boyfriend and that his romantic interest in her was negatively affecting her personal and professional life.

After refusing, she’s fired. Thereafter, she alleges that he began to lay the foundation for firing her. He began to complain to the pharmacist-in-charge about her, which the pharmacist thought was odd because the COO never had anything bad to say about her before and he thought she was doing a good job. Ultimately, the employee told the pharmacist about the dinner and her rejection of the COO’s proposal. He testified that he started warning her that she should look for another job because she was going to get fired. He was hopeful that the problem would be resolved by the hiring of a director of marketing, who would become the employee’s supervisor, but even though the director asked for the opportunity to get to know her work first, the COO fired her before he could. The new director testified that, thereafter, he was asked to put together performance information about her, which he later learned was in response to her allegations of sexual harassment.

"Unrelenting and grinding campaign." The employee filed a charge of discrimination with the EEOC and later filed suit against the employer under Title VII, alleging a sexually hostile work environment and unlawful retaliation. The employer filed a motion for summary judgment. Considering her claim as one for hostile work environment, the court concluded that the employee presented sufficient evidence to get it before a jury. The employer argued that it was not severe or pervasive.

Although the court agreed that the COO’s conduct was "distinguishable from" that described in many other cases because he had not made "unwanted physical advances," used "sexually explicit language," or sent or displayed "sexually provocative or offensive images," it was more that simple flirtation or socializing. Rather, the employee’s testimony established that the COO had "embarked on an unrelenting and grinding campaign to win" her affection. If "considered collectively," his conduct and comments "lead to the valid conclusion that a reasonable person in Coates’s shoes would perceive that working environment to as abusive and hostile."

Power disparity is key. Moreover, while the case was missing "some of the indicia of traditional hostile work environment claims," it included something that was "unique" and "aggravating," i.e., the substantial disparity of power between the employee and her harasser. The Fourth Circuit has found power disparity in cases of sexual harassment to be an important aspect to consider. In this case, the court noted, the harasser was not simply a coworker and he was something more than her supervisor as well. He was the COO and a part-owner of the company, with "unlimited power and discretion over the terms and conditions of his employees’ jobs—plenary power that he consistently wielded to Coates’s detriment." That disparity, the court explained, tipped the analysis in the employee’s favor.

Pharmacist’s testimony. With respect to the employee’s retaliation claim, the court noted that the employer had conceded that the employee engaged in a protected activity. However, it dropped a footnote noting that "pinpointing exactly when" the protected activity occurred (whether it was at her refusal or when she told him that his requests were affecting her personal and professional lives) was not simple. Either way, the court found that the employee presented more than sufficient evidence that her rejection of his final proposal was the but-for cause of her discharge. The "strongest evidence on this point" was provided by the pharmacist who noted the abrupt change in the COO’s attitude towards the employee and "presciently concluded that the writing was on the wall" and that she would be fired.

The case is No. 4:19cv00049.

Attorneys: Terry Neill Grimes (Terry N. Grimes Law Office) for Allison Coates. Laurin H. Mills (Samek Werther & Mills) for Suthars, Inc. dba Kare Pharmacy and Compounding.

Companies: Suthars, Inc. dba Kare Pharmacy and Compounding

Cases: SexualHarassment SexDiscrimination Discrimination Retaliation Discharge VirginiaNews GCNNews

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