By George Basharis, J.D.
She presented evidence that her supervisor touched her repeatedly and invited her to his hotel room and that when she turned him down, he started building a case to fire her for performance problems, which ramped up further after she complained to HR.
A female Northrop Grumman manager, in charge of a group of employees carrying out "war games" for the U.S. military, will present to a jury her claims against Northrop Grumman for sexual harassment and retaliation, a federal district court in Kansas ruled. She established a genuine issue of material fact as to her sexual harassment claim under both quid pro quo and hostile work environment theories of harassment, the court concluded, as well as a claim of retaliation based on the difference in her treatment after she complained to HR. However, it granted the employer’s motion regarding the issue of damages, which would be limited she failed to establish a genuine issue of material fact whether the employer would have fired her had it known that she continued to record workplace conversations after being reprimanded (McQueen v. Northrop Grumman Systems Corporation, July 27, 2021, Vratil, K.).
Repeated touching. In 2016 the employee, who had worked for Northrop Grumman for eight years at that point, became a Manager 1 and worked with approximately 30 direct reports carrying out "war games" for the United States military. In October 2017, however, she began experiencing problems with a new supervisor who repeatedly touched her on her back, shoulders, arms, and thighs. She asked him on several occasions to stop touching her so often, but he did not stop. She started keeping track and on one day, alone, he touched her back 17 separate times. After one of the employee’s complaints to him about it, he responded that she was being insubordinate and that she "must be on her period."
Asked her to come to his room. In fact, his touching did not go unnoticed by others. On one occasion a male co-worker saw him touch the employee on her thigh. He confronted the supervisor about it. The supervisor claimed to the co-worker that he "touches everyone" but the co-worker noted that in the four years he had known the supervisor, the supervisor had never touched him that way. In early 2018 the employee, the supervisor, and others traveled to another location and, while there, the supervisor approached the employee on three occasions asking her to his hotel room to drink wine and talk about her future with the employer. She told him she not comfortable having the conversation in his room. Eventually he gave the bottle of wine to her male co-worker, telling him, "I wanted to share this with [plaintiff] but couldn’t get her to come up to my room. Maybe you’ll have more luck with her." The coworker took that to mean that the supervisor had been unsuccessful at getting the employee to have sex with him.
Started tracking her performance. Thereafter, the employee contended, the supervisor started tracking her "performance deficiencies." In June of 2018, the employee was given her mid-year performance review which described her as an "excellent project lead" and stated that she had done an "excellent job" but also stated that the employee required additional focus on promptly responding to emails, hiring personnel in a timely manner, completing evaluations of direct reports by the deadlines, and arriving in a timely fashion for meetings. The employee was surprised at the negative review but did not dispute that she was not meeting expectations about answering emails within certain time periods.
Mistreatment by other male employees. In the meantime, in 2017, Northrop hired a male employee who reported to the employee. He asked about her marriage repeatedly and made comments that were inappropriate for the workplace. He told her he could "satisfy" her outside her marriage and suggested she be his "road wife" on a business trip. He also sent her a series of text messages, including one in which he requested pictures of her genitals. She also worked with another manager on a project who sent emails suggesting she did not have the knowledge to work on the project, referred to the employee as "window dressing," and told the employee that she was only part of the exercise "so the old guys would see a pretty bundle." She reported him to HR despite her supervisor’s feeling she "betrayed" him by going to HR.
PIP and termination. Between May and August of 2018, without authorization, and without his knowledge or consent, the employee recorded between 10 and 15 conversations with her supervisor who issued a written warning to the employee for recording workplace conversations in violation of company policy. After the employee told HR the recordings were evidence of supervisor’s retaliation against her, she was ordered by her supervisor to destroy the recordings. However, she recorded five additional conversations in the workplace that included three with her supervisor. Ultimately, the employer placed her on a PIP but was told that the information for it would come from her supervisor. In her final meeting she rated satisfactory in three out of five categories. Nevertheless, she was fired.
Quid pro quo. She sued Northrop alleging sexual harassment and retaliation. She asserted both quid pro quo and hostile work environment theories of sexual harassment. Regarding the former, she argued she was fired because she refused her supervisor’s invitation to his hotel room to drink wine and discuss her future with Northrop. The court concluded that, after considering all the evidence, a reasonable factfinder could conclude that supervisor was asking the employee to his hotel room during the business trip to have sex. Contrary to the employer’s argument, the court found that a reasonable factfinder could conclude that the supervisor implicitly conditioned the employee’s employment on submission to his sexual advances.
The court pointed out while the employee was on the PIP, the employer rated her performance higher when the supervisor was not acting as the primary source of information (the fourth review) than when he was (the first three reviews). Although the employer also argued that the employee could not show that her rejection of the supervisor caused her termination because it had legitimate, nondiscriminatory reasons for firing her, the court determined that the record revealed a genuine issue regarding whether the proffered reasons were pretext for discrimination. Specifically, a reasonable factfinder could conclude that the supervisor’s dissatisfaction with hers performance only arose because she refused to come to his room during the business trip.
Hostile work environment. Additionally, the court noted, the employee appeared to argue that the combined actions of the supervisor and co-employees created a hostile work environment, although she did not clearly delineate her quid pro quo and hostile work environment claims. The employer argued that the actions of the supervisor and co-workers was "legally inconsequential" and not severe or pervasive as a matter of law, but the court explained that whether conduct was sufficiently pervasive or severe is a question of fact unsuited for summary judgment.
Based on sex? According to the employer, the employee’s sex did not motivate the supervisor to repeatedly touch her because he touched male employees as well. However, while the employee admitted seeing him touch two male employees on the arm, she testified that she never saw him touch another employee on the shoulder or knee. The court noted that when a female employee is "physically harassed in a way that male employees are not, the unwelcome touching is presumptively gender-based." A reasonable factfinder could conclude that the employee’s sex motivated the supervisor’s repeated touching of her and it could find her co-workers’ conduct likewise overtly sexual. Viewed in the light most favorable to the employee, her sex motivated the supervisor and co-workers.
Severe, pervasive. Moreover, the court held that the record supported a finding that the harassment by supervisor and co-workers was sufficiently severe and pervasive. The supervisor’s touching, the male co-worker’s comments about her marriage, and the request for a photo of her genitals all contributed to a hostile work environment. A jury could reasonably find that the repeated propositioning, touching and sexual requests, plus the threatening and unsolicited behaviors and the supervisor’s refusal to correct those behaviors, created a severe and hostile work environment.
Retaliation. Additionally, the employee contended that the employer terminated her employment because she complained to HR about the sexual harassment that she experienced and because she rejected her supervisor’s advances. However, the employer argued she could not establish a causal connection between her complaint in August of 2018 and the termination of her employment in April of 2019. While the court determined that the eight-month period between the employee’s HR complaint and her termination was insufficient to raise an inference of causation, a genuine issue of material fact existed whether Northrop terminated the employee’s employment because she complained. The court pointed out that supervisor only rated the employee as an inconsistent performer after her HR complaint. Moreover, the court explained, the employee participated in protected activity when she resisted supervisor’s requests to go to his hotel room. Also, a reasonable factfinder could find that the employer’s explanation for terminating the employee’s employment was pretextual.
Limited damages. However, the court held that the employee did not demonstrate a genuine issue of material fact whether the employer would have fired her if it had known that she continued to record conversations after being reprimanded for doing so. Based on that evidence, the employer argued that the after-acquired evidence doctrine applied to limit the employee’s damages up to the date of the discovery that she had done so. The employee did not respond to the argument and the employee did not demonstrate a genuine issue of material fact. Therefore, her damages were therefore limited to the period of time before her deposition in August 2020.
This case is No. 19-2743-KHV.
Attorneys: Rachel Catherine Rutter (Rutter Law Firm) and Mary M. Johnson (Law Office of Madeline Johnson) for Jennifer Mcqueen. David C. Vogel (Constangy, Brooks, Smith & Prophete) for Northrop Grumman Systems Corp.
Companies: Northrop Grumman Systems Corp.
Cases: SexualHarassment Discrimination SexDiscrimination Retaliation Discharge GCNNews KansasNews
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