By Brandi O. Brown, J.D.
That evolution, plus comments and “me too” evidence about him, could lead a reasonable jury to find that the male manager’s abusive conduct supported the female Walmart HR manager’s claim of a gender-based hostile work environment.
Walmart’s extensive effort to avoid trial in a lawsuit brought by a female human resources manager failed in part when a federal district court in Kansas ruled that several claims presented by an HR manager, including claims that a male manager subjected her to a hostile work environment, should go to trial. Although it ruled that the claims under the ADEA and ADA could not go forward, it concluded that the hostile work environment claim, as well as several other claims under Title VII, could go to a jury, partly on the strength of the male employee’s comments, actions by him and another supervisor, and “me too” evidence (Isberner v. Walmart Inc. , September 21, 2021, Robinson, J.).
At the age of 55, the employee was hired by Walmart as a Market Human Resources Manager. She worked in that position for 11 years, until her resignation in 2019. At all times, she suffered from Addison’s Disease, alcoholism (she was in recovery), and depression and several of her colleagues were aware of one or more of those conditions. In her HR manager position, she was responsible for collaborating with other managers, including market managers, for things such as training and for conducting investigations of complaints of employee misconduct that had been submitted to Walmart’s Global Ethics office. She was responsible for a particular geographic region of stores known as “Market 406.”
“Crazy HR lady” and drinking references. Most of her employment problems were the result of her treatment by a market manager in Market 406. Between 2014 and 2016, she alleged, he made repeated comments referencing her age, gender, and alcoholism. On a few occasions he commented that she was close to his mother’s age and that it made him uncomfortable. On three or four occasions, he introduced her with a reference to the “Most Interesting Man in the World” beer advertisement, which she understood to be a reference to her status as a recovering alcoholic. Around the same time, he began referring to her as the “crazy HR lady” during meetings and calls. When she told him it offended her, he claimed he was just kidding around, and he continued to refer to her that manner. In addition, she struggled to get him to participate in initiatives she spearheaded, even though she was evaluated in part on his participation.
He yells at and ridicules women. The employee contended that her relationship with the male manager further soured in 2018, when, in a market meeting that included other managers, he verbally attacked her, yelled at her, and called her a liar. According to the evidence, this was not unheard-of behavior by the manager. The employee presented evidence that at least five female employees had reported that the male manager regularly yelled and screamed at them. (Walmart’s effort to get this “me too” evidence excluded was mostly unsuccessful.) One of those store managers testified that he yelled in her face. The HR manager witnessed that incident.
The HR manager also testified that she witnessed him publicly ridicule, reprimand, and/or belittle other female managerial employees, including store managers and a co-manager, and that he told her he wanted one of the store managers removed from her store. She also believed that he worked to remove several female managers from their positions. She testified that during the 11 years she worked with him, somewhere between 14 and 16 women complained to her that he had discriminated against them based on their gender.
Other managers’ testimony. One female store manager testified that he had a problem with her because of her gender and that he made comments about her pregnancy and weight. The HR manager testified that he belittled that store manager and that she reported his mistreatment to the male market manager’s supervisor. She also observed him provide specific feedback to several male store managers that he did not provide to female managers. She testified that when she tried to intervene in one store manager’s complaint about the male market manager, she “was basically ignored.”
Later that year, he also accused the HR manager of spreading rumors about him being involved in a relationship with one of his subordinates. After that, she spoke to her direct supervisor, the Regional Human Resources Manager, about some of her concerns but she felt like the supervisor did not listen to her. For the last six months of her employment, she contends, the supervisor became increasingly unresponsive.
Refuses to work with her. In February 2019 the employee claimed that the market manager, even though he had agreed to it, refused to act as a witness in an investigation she was conducting at a location in Liberal, Kansas. Because he would not come for the interviews, she could not do a formal investigation and had to do factfinding interviews instead. This led to fallout with her direct supervisor, who concluded the employee had not adequately prepared for the investigation. She was removed from the investigation and the issue was reflecting in her performance review, after which she received the lowest raise in her ranking category.
He explodes again, she quits. Around the same time, the market manager told the employee’s supervisor that he was not comfortable speaking to the employee alone and was told he did not have to. This in turn led to the employee, who was unaware that he had been told this, being unable to complete her own work. She insisted that he meet with her about an upcoming training and other work issues on March 11, but it was then that he told her that he would never speak to her alone. He then became angry at her, called her a liar, and led her to feel in danger of physical harm from him. She contended that he “could just blow up” and was “very unpredictable.” The next day she resigned, telling her direct supervisor about the incident and referencing other recent incidents.
HWE claims. The employee filed suit, alleging violations of Title VII, the ADEA, and the ADA for hostile work environment, constructive discharge, and other forms of discrimination. She also alleged retaliation under Title VII. Aside from the attempt to have some of the “me too” evidence precluded; Walmart also argued that some of the employee’s claims were not properly exhausted. Only one of the discrete adverse actions the employee alleged fell outside of the 300-day time period, i.e., some of the incidents where the market manager refused to participate in the HR manager’s initiative programs (those occurring before August 28, 2018). Regarding the HWE claims, the court concluded that the comments that would have supported her ADEA and ADA claims also occurred outside of the limitations period, so summary judgment was granted against those claims.
Sex-based HWE claim survives. Regarding the HR manager’s HWE claim under Title VII, which Walmart did not challenge as not exhausted, the court declined to grant summary judgment to the employer. While the initial incidents alleged by the employee to have created a hostile work environment—including the “crazy HR lady” comment—was neither physically threatening nor particularly severe standing alone, the court noted, it had to review them “in conjunction with the entire hostile work environment and assess the cumulative weight of these comments under the totality of the circumstances.”
It was uncontroverted, the court noted, that the two managers were frequently in conflict beginning in 2018. The HR manager described verbal assaults by the male manager, which he alternated with completely ignoring her attempts to work with him. By the final confrontation, he informed her that he would never speak with her alone again. She provided evidence that she felt physically threatened by him and that her supervisor was unwilling to acknowledge or investigate the breakdown in their relationship, which “created an unreasonable interference with her work performance.”
The evidence demonstrated that the HR manager was required to work closely with the male manager in order to perform her job duties. Given his “unpredictable, explosive conduct,” the court explained, along with his refusal to engage with her, a reasonable jury could conclude that a reasonable person in her position “would have considered the work atmosphere so full of severe or pervasive intimidation, ridicule, and insult due to her gender that it altered the conditions of her employment.” Contrary to the employer’s argument, moreover, there was evidence that the conduct was gender-related, including the male manager’s past comments and “a substantial amount of ‘me too’ evidence.” Thus, she created a genuine fact issue about whether the male manager’s conduct created a sufficiently severe or pervasive hostile environment.
Constructive discharge. The court also denied Walmart’s motion on the employee’s claim of constructive discharge under Title VII, although it granted it with regard to her claims under the ADA and the ADEA. A reasonable jury could infer that she was constructively discharged under circumstances giving rise to an inference of gender discrimination, the court concluded, in light of evidence that she told her supervisor that the male manager did not like women in positions of power and that he treated her and other female managers differently than men. While Walmart contended that the male manager’s conduct was because he believed the HR manager was spreading false rumors about him, the evidence showed that his abusive conduct pre-dated those events.
Faragher-Ellerth defense. Not surprisingly, Walmart raised a Faragher-Ellerth defense to the employee’s claims of hostile environment. First, the court concluded that a respondeat superior theory of liability applied, rather than the negligence standard applicable to coworker harassment. The employee’s boss, the Regional HR Manager, “[w]ithout question,” had supervisory authority over her. Regarding the male market manager, it was undisputed that he could not fire or demote her, but there was a genuine question about whether he had “the power to substantially influence tangible employment actions against” her. According to the employee, the market manager could discipline her, and he weighed in on tangible employment actions that concerned her job. It was undisputed that he contributed to her 2017 performance evaluation, which impacted her pay. These factors led the court to consider the employer’s liability under a respondeat superior theory of liability.
Second, the court considered whether there was a tangible employment action. It concluded that there was a fact issue about whether the market manager had the power to recommend or substantially influence tangible employment actions involving the employee. In any event, the court concluded that his alleged misconduct did not involve “official directions and declarations” demonstrating that he was aided by the agency relation, so the court considered the remaining elements of the defense, i.e., whether the employer had notice. While it was undisputed that for several years the employee did not report his conduct, she did report it in November 2018 to her direct supervisor. Whether her complaints were “too vague” to constitute notice was a question properly left to a jury, the court concluded, and it denied Walmart’s motion on this ground.
Discrete discrimination claims. Additionally, the employee asserted several discrete claims under Title VII. In addition to constructive discharge, regarding which the court had concluded there was a genuine issue of material fact, she contended that the market manager’s refusal to speak to her and participate in her programs constituted an adverse action, as did the performance evaluation and her removal from the investigation at the store in Liberal. The court concluded that those additional actions were not actionably adverse employment actions.
Retaliation. However, the employee’s retaliation claims under Title VII based on the male manager being permitted not to speak to her and her removal from the Liberal investigation were allowed to proceed. The first one caused the employee to suffer an objectively material disadvantage in the workplace and the second one would dissuade a reasonable person in the employee’s position from making a charge of discrimination.
The case is No. 20-2001-JAR-KGG.
Attorneys: Austin O’Neil Jaspers (McInnes Law) for Susan Isberner. Mark J. Goldsmith (Baird Holm) for Walmart Inc.
Companies: Walmart Inc.
Cases: Discrimination SexDiscrimination SexualHarassment DisabilityDiscrimination AgeDiscrimination Discharge Retaliation Procedure KansasNews GCNNew
Interested in submitting an article?
Submit your information to us today!Learn More