Sex harassment and constructive discharge case headed to trial

judge ruling

A federal court denied summary judgment in a recent case involving sexual harassment, constructive discharge, and retaliation claims, clearing the way for a jury trial.

The ruling is notable because it is relatively rare for a court to find that a plaintiff presented sufficient evidence of constructive discharge to warrant a jury trial on the claim.  Also, the court found that direct evidence of retaliation existed, which is a similarly uncommon ruling.

The case is Andriano v. Tyson Foods, Inc., 2017 WL 2797378 (M.D. Tenn. June 28, 2017).  Plaintiff is represented by Parker and Associates. Defendant is represented by Baker, Donelson, Bearman, Caldwell & Berkowitz, PC.

Alleged sexual harassment

Soon after the plaintiff Andriano began working for Tyson Foods, she alleges that supervisors and co-workers began to sexually harass her.

For example:

  • a supervisor said he wanted to “see how far [he] could get with [Andriano]”;
  • a coworker repeatedly asked Andriano out to dinner, made “kissy noises” toward her, visited her work area often, and stared at her;
  • eventually this same coworker allegedly came into Andriano’s work space, asked if she was alone, asked her out to dinner again, took her hand and refused to let go until Adriano ran away and the coworker chased after her, ultimately Andriano had to lock herself in her office and call to her supervisors for help;
  • the next day, the coworker reportedly made an obscene tongue gesture toward Andriano

Andriano states that she reported all of these incidents to supervisors.  Andriano further claims that, in response, these supervisors did not take any action at first and even advised Andriano not to report her complaints to Human Resources.

Eventually, the company investigated the tongue gesture incident but did not corroborate the claim and did not discipline the coworker.

Andriano then claims Tyson retaliated against her

After these reported incidents of harassment, Andriano states that two supervisors met with her a few weeks later and criticized how she handled the coworker’s harassing conduct.

Andriano began crying and says that she asked to go home but the supervisors told her that if she went home, she would be quitting her job.

She alleges that she then tried to call the “Tell Tyson First” hotline but that the supervisor told her it was inappropriate to have a phone out during the meeting.

The next day, Andriano resigned, saying she felt harassed.

The Court’s rulings

Hostile work environment/sexual harassment

To prove her hostile work environment/harassment claim, Andriano must prove:

  • she was a member of a protected class;
  • she was subjected to unwelcome sexual harassment;
  • the harassment was based on sex;
  • the harassment unreasonably interfered with her work performance; and
  • the employer knew or should have known about the harassing conduct but failed to take corrective action

The two key points at issue here were whether (1) the harassment was sufficiently severe or pervasive and (2) Tyson did enough to end the alleged harassment.

The judge ruled that the complained of harassment met the severe or pervasive test and that a jury should decide the case.

 

For three of her seven months of employment, the judge noted, her coworker came into her office and made sexually suggestive overtures.

Andriano asked him to stop and he did not.  Andriano asked her supervisor to make it stop and she did not . . . Ultimately, the harassment culminated with [the coworker] chasing Andriano around her office, and a reasonable inference from that incident is that [the coworker] intended to sexually assault her.  Andriano, 2017 WL 2797378 at *4.

In addition, Tyson can be held responsible for this coworker sexual harassment.  According to Andriano, she reported the coworker’s harassment on a weekly basis and the supervisor’s response–calling the coworker “harmless”– “cannot seriously be argued to be ‘reasonably calculated to end the harassment.'”  Andriano, 2017 WL 2797378, at *4.

Tyson also argued that it responded sufficiently because a supervisor told the harassing coworker not to come into Andriano’s office during work hours.  But the next day, the judge found, the coworker still came to Andriano’s office and made a vulgar tongue gesture.  As a result, Tyson can be liable for the harassment.

 

Constructive discharge

As to the constructive discharge claim, the judge further held that Andriano

…set forth sufficient facts to allow a jury to decide whether she is entitled to damages from her constructive discharge.  To obtain damages stemming from a constructive discharge, a plaintiff must ‘show working conditions so intolerable that a reasonable person would have felt compelled to resign.’  Andriano, 2017 WL 2797378, at *5.

Because a disputed question of fact remained on whether the alleged repeated sexual conduct and Tyson’s repeated failure to remediate resulted in her termination, the judge denied Tyson’s motion for summary judgment on the claim.

This is notable because constructive discharge claims are generally difficult to prove and are often dismissed at the summary judgment stage.

Retaliation claim

Finally, the court found that Andriano had presented direct evidence of Tyson’s retaliation against her.

“Direct evidence,” the court wrote, “is that evidence which, if believed, requires no inferences to conclude that unlawful retaliation was a ‘but-for cause’ of the employer’s action.”  Andriano, 2017 WL 2797378, at *5.

Andriano states that she complained to a supervisor every week and the supervisor told Andriano not to report the harassment to Human Resources, and the supervisor also did not alert Human Resources to it.

The supervisor’s refusal to take the harassment complaint to Human Resources and “to dissuade or forbid Andriano from taking her own complaints against [the coworker] to Human Resources is direct evidence that Tyson retaliated against Andriano for filing” her initial harassment claim.  Andriano, 2017 WL 2797378, at *5.

Because Tyson did not show that it would have made the same decision absent the retaliatory motive, the Court denied Tyson’s motion for summary judgment and set this claim for trial as well.

Takeaways

A few key takeaways:

  • sexual harassment that involves physical touching and repeated threatening conduct is more likely to meet the “sever or pervasive” test in a hostile work environment claim;
  • employers will have a harder time escaping liability if the plaintiff’s complaints are ignored or otherwise not adequately addressed;
  • thus, it is very important for employees who have experienced discrimination, harassment, and/or retaliation to make a timely complaint(s) to their employer

Hiring an experienced employment discrimination lawyer

Hiring a proven and effective advocate is critical to obtaining the maximum recovery in an employment discrimination case.  Eric Bachman, Chair of the Firm’s Discrimination Practice, has substantial experience litigating precedent-setting individual and class action discrimination cases.   His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain.  Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is trial-tested and ready to fight for you to obtain the relief that you deserve.

Bachman writes frequently on topics related to promotion discrimination, harassment, and other employment discrimination issues at the Glass Ceiling Discrimination Blog.

U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation – Labor and Employment in the Washington DC metropolitan area.  Contact us today to find out how we can help you.  To schedule a preliminary consultation, click here or call us at 202-262-8959 or (202) 769-1681.

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