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Claim that coworker with erection constantly stared at employee was based on sex

By Marjorie Johnson, J.D.

A female employee’s hostile work environment claim was revived on appeal since erroneously excluded evidence suggested that her male coworker’s harassment—including constantly staring at her with an erection—was based on her sex. However, the Eleventh Circuit affirmed summary judgment against her on her retaliation claim since she failed to cast doubt on her employer’s assertion it fired her because, amongst other things, she violated the harassment policy by taking a picture of the coworker’s erection and showing it to others (Furcron v. Mail Centers Plus, LLC, December 16, 2016, Schlesinger, H.).

Coworker’s harassment. The employee worked for Mail Centers Plus (MCP) and was assigned to a mailroom at a Coca Cola facility. On November 27, 2012, a male coworker who suffered from Asperger’s syndrome and had been counseled for odd behavioral issues was transferred to her work area. He soon began engaging in conduct that made her uncomfortable, including staring at her while he had an erection and attempting to look down her shirt and at her underwear. When she first complained to her supervisor, he allegedly told her the coworker meant no harm and to tolerate him because of his disability.

Picture worth 1000 words? On November 30, she took a picture of the coworker from the neck down to prove to her supervisor he had an erection. According to MCP, she showed the picture to several coworkers before showing it to her supervisor on December 3. She also complained to two managers the next day but claimed she was met with laughter. On December 5, she sent an email to HR and two other managers explaining that she feared for her safety and that his constant erection made her “very uncomfortable.” Shortly thereafter her supervisor told her not to show the photograph to anyone.

After she met with two managers later that day and showed them the picture, she was suspended and instructed not to discuss her complaint or other confidential information. The next day, MCP learned the employee had contacted a Coca Cola HR rep about the picture, and the HR rep expressed concern that she was showing such pictures in the workplace. The employee was terminated the following day.

Summary judgment. She brought the instant action asserting sexual harassment and retaliation under Title VII. The district court dismissed both claims on summary judgment, adopting a magistrate judge’s report finding that she failed to show that her conduct was based on sex, that she engaged in protected activity, or that her suspension and firing were pretextual. However, the court rejected the magistrate’s finding on lack of severity and pervasiveness.

Sexual harassment claim revived. The Eleventh Circuit revived her sexual harassment claim based on a faulty evidentiary ruling that was critical to the magistrate’s determination that she failed to show the harassment was based on sex. Specifically, while the magistrate judge did not abuse its discretion in excluding portions of her own declaration that were arguably inconsistent with her deposition testimony, it was error to exclude her female coworker’s declaration as being “largely immaterial.”

Coworker’s testimony bolster “based on sex.” The female coworker stated, among other things, that the male coworker looked at her breasts and rear when she bent over, that she witnessed him rubbing up against the employee, and that she was aware the employee had complained. Such testimony was not “largely immaterial” since it could help prove whether the employee complained and, more importantly, whether the harassment was “based on sex.”

Moreover, the error was not harmless since the district court denied summary judgment on all grounds except for the “based on sex” requirement. The female’s declaration that the coworker looked at her breasts and buttocks in a sexual manner suggested that his conduct was based on gender. Therefore, because the employee was substantially prejudiced by the exclusion of the declaration, summary judgment was vacated as to the sexual harassment claim and remanded.

Protected activity. The district court also erred in finding that the employee didn’t engage in protected activity. She testified that she told her supervisor the coworker was deliberately rubbing against her and that she found it offensive. She also showed him a photograph she had taken of his erection and explained that she was afraid to “bend down and lift stuff up.” Indeed, a senior manager to whom she also showed the picture admitted that it qualified as a “serious incident,” and “draw[s] a red flag for somebody to call [HR].” Her December 5th email also expressed discomfort at the coworker’s constant erections.

No pretext. However, summary judgment was warranted because the she failed to cast doubt on MCP’s assertion it fired her because she violated its harassment policy by showing others a photograph of the coworker’s crotch area, by continuing to show the photograph after being specifically advised not to, and by discussing the confidential matter with MCP’s client. In response, the employee merely asserted that she violated no work rules since a former supervisor had instructed her to photograph any improprieties she witnessed in the workplace.

However, this argument did little to weaken MCP’s claim that her conduct violated its clear policy proscribing harassment in the form of “written or graphic material that denigrates or shows hostility or aversion toward an individual or group” on the basis of sex or disability.” Indeed, she did not dispute that she showed a photograph of the coworker with an erect penis to others. The court also rejected her assertion that not all of its proffered reasons were set forth in her separation notice, since the additional rationales were fully consistent with its originally offered basis for her termination.