Supervisor’s fiddling with zipper during performance review bolsters hostile work environment claim
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Tuesday, June 25, 2019

Supervisor’s fiddling with zipper during performance review bolsters hostile work environment claim

By Marjorie Johnson, J.D.

While the supervisor never gave her a poor review, his conduct could reasonably be interpreted as conditioning her continued success on her willingness to provide sexual favors to him.

A training director for a company that operates auto dealerships defeated a summary judgment motion on her claim that her male supervisor subjected her to a sexually hostile work environment by repeatedly engaging in sexually charged behavior. His alleged conduct included making comments about her breasts and playing with his pants zipper during her performance evaluation while asking what she was willing to do for a good review. Though she delayed reporting the harassment and testified that she did not let his conduct affect her work, a federal court in Wisconsin concluded that it would be up to the jury to decide whether her work environment was oppressive and to what extent his alleged harassment interfered with her ability to do her job (Lundgren v. Kocourek Automotive Dealerships, Inc., June 18, 2019, Crabb, B.).

Single groping by president. After having worked for the employer several years in the 1990s, the employee was rehired in 2010 to become its director of training. She originally reported directly to the president, who she claimed physically groped and grabbed her at his 50th birthday party during a work-related conference in 2012. However, she did not complain to anyone at the time and he never sexually harassed her again.

Supervisor’s sexually charged conduct. In 2014, the employee began reporting to the general manager (GM) of several of the company’s dealerships, who allegedly had made repeated sexually offensive comments to her and about other women. For instance, she claimed that he regularly commented about the size of women’s breasts, referred to female customers as "hot," and once played a pornographic video depicting anal sex. He also made several attempts to touch her breasts during a business trip in late 2010, prompting her to nickname him "Captain Hands" and to direct him to keep his "damn hands to himself."

After a meeting in his office on January 19, 2016, the GM asked her questions about her sex life. At another meeting that same month at a restaurant, he commented about a waitress having nice breasts and stated that she should not have "put her breasts out there" if she did not want them to be noticed. At this same meeting, he told the employee that her dress made her breasts look great. Then, in a parking lot following a lunch meeting on February 10, he asked her whether she was getting lots of sex and stated that he wanted to live vicariously through her. And during a meeting about her annual review on February 23, he laughingly played with the zipper on his pants and asked her what she was willing to do for a good review.

Complains and is fired. In late March, she complained to the president for the first time about the GM’s harassment. She also told the president that she would be uncomfortable if he supervised her instead, though, due to the 2012 groping incident. She didn’t complain to anyone else and testified that "you tolerate a lot and just laugh it off and let it go and do your work as long as it did not effect your work." On April 3, the president sent her a text message stating that the HR manager would contact her regarding her "resignation."

She subsequently filed a charge with the state’s anti-bias agency, which investigated and issued a probable cause determination. After receipt of her right-to-sue letter, she filed this Title VII action asserting she was subjected to a hostile work environment and terminated after she complained. At issue was the employer’s partial motion for summary judgment on her hostile work environment claim.

Untimely claims. The employer argued that her allegations concerning the president’s alleged groping in 2012 were untimely and the continuing violation doctrine didn’t apply. The court agreed, noting that the groping incident involved different individuals and different types of conduct (physical touching vs. sexually charged comments). And while she generally alleged that this incident set the stage for future misconduct by the GM by condoning a "culture of harassment," there was a three-year gap between this incident and any other alleged harassment.

Moreover, because she waived any argument regarding the timeliness of her non-specific allegations, her hostile work environment claim was time-barred with respect any non-specific allegations of harassment occurring on unknown dates prior to October 2, 2015.

Severe and pervasive. However, triable issues existed as to whether the harassment that occurred within the 300-day window was sufficiently severe or pervasive to create an actionable hostile work environment. The alleged harassment was sexually charged, primarily directed at the employee, occurred more than occasionally, and could reasonably be considered humiliating. In addition, while the GM never gave her a poor review, a reasonable jury could interpret his conduct during her performance review as conditioning her continued success and future positive performance reviews on her willingness to provide sexual favors to him, or at least, to tolerate continued verbal harassment.

The court rejected the employer’s contention that her failure to report any harassment until March 2016, along with her testimony about not letting the GM’s alleged conduct affect her work, demonstrated that the harassment was not severe and did not have a negative effect on her. Since she also testified that the GM negatively affected her career, it would be up to the jury to decide whether her work environment was oppressive and to what extent the alleged harassment interfered with her ability to do her job.

The case is No. 3:18-cv-00245-bbc.

Attorneys: Michael Godbe (Hawks Quindel, SC) for Jori L. Lundgren. Brian M. Radloff (Ogletree Deakins) for Kocourek Automotive Dealerships, Inc. Mark Patrick Tilkens (Jackson Lewis) for Ballweg Automotive, Inc.

Companies: Kocourek Automotive Dealerships, Inc.; Ballweg Automotive, Inc.

Cases: SexualHarassment Procedure WisconsinNews

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