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Jury to say if harassing conduct, which over time became unwelcome, was actionable

By Joy P. Waltemath, J.D.

Despite evidence that a female foreman—the only female working in the field for a large construction company—initially engaged in “off-color banter” with male coworkers, text-messaged with them, and even after she was fired texted with or posted on Facebook with them, there was enough contrary evidence that the constant sexualized environment gradually took a toll on her and that she eventually communicated her opposition to it that a federal district court in Tennessee would not grant summary judgment to her employer. In so ruling, the court also refused to strike her affidavit in opposition to summary judgment as a sham, finding it a legitimate effort to supplement the record and generally consistent with her prior deposition testimony. There were disputed material issues of fact as to whether the harassing behavior was unwelcome, how and when the employee objected to it, and whether she failed to take advantage of the company’s sexual harassment policy. Her intentional infliction of emotional distress claim failed as a matter of law because the court found it, “unfortunately, not atypical of the fact pattern presented in most harassment cases” (Cossairt v. Jarrett Builders, Inc., February 20, 2018, Crenshaw, W., Jr.).

“Wildly divergent” view of work environment. The parties hotly disputed the working atmosphere at the construction company, Jarrett. Together their lengthy statements of undisputed material facts set forth what the court called a “widely divergent view” of the employee’s working conditions. In fact, Jarrett moved to strike the employee’s post-deposition declaration as a sham, contending it materially contradicted her deposition testimony. But the court noted it had read the employee’s “359 page deposition and the accompanying 53 pages of exhibits in conjunction with her 15 page, 46 paragraph Declaration.” And it found the employee’s declaration to be generally consistent with, and an amplification of, her prior deposition testimony.

Dawning recognition of harassment. Much of the summary judgment evidence was addressed in the motion to strike. First, Jarrett argued that the employee said at deposition that she had not been sexually harassed until she was promoted to foreman, yet her declaration identified incidents prior to her promotion. But this was not a direct contradiction, said the court; the employee both said she did not believe she had been sexually harassed while a laborer and said that it took her a while to realize what was going on. She said “I thought that I what I was being put through and dealing with was just part of working with men, and I wanted to fit in, so I didn’t at the time realize I was being sexually harassed.”

Because hostile environment claims by their very nature involve repeated conduct and, “absent egregious and exceptional circumstances, it is a cumulative series of acts or comments that build up subjectively and create objectively an alleged hostile work environment,” the court would not disregard evidence of harassing conduct prior to the employee’s promotion to foreman, simply because she might not have yet recognized it was harassment.

How to communicate “unwelcome.” Jarrett also contended that her declaration and deposition testimony conflicted about whether she had communicated to her supervisor that his comments and behavior were inappropriate and unwelcomed. But the court pointed out that the employee did, however, testify to giving him a disgusted look and walking off; saying “this is how rumors get started;” and that she was sure she told him not to talk like that “a couple of times. Not as much as I wish I would have.” This type of discrepancy between her deposition and her declaration “may be the fodder for cross-examination,” said the court, “but it is hardly a sufficient basis to strike [her] Declaration in its entirety.”

Offensive vs. sexually offensive. Jarrett also made similar arguments to advance its motion to strike, none of which the court would buy. Jarrett claimed that the employee’s deposition testimony about her supervisor’s requests for dates contradicted her deposition testimony about whether it was welcomed or affected her job performance. Actually, said the court, the employee testified that, while she may not have found the request sexually offensive, she was offended by it and felt it to be inappropriate. And she was never asked on deposition about whether the dating requests affected her job performance, the court pointed out.

Nor would it find inconsistencies in the fact that her declaration included “a litany of complaints about the physical and emotional toll the alleged harassment had on her, only a very minute portion of which was discussed at her deposition.” That was clearly because the focus of her deposition was on what she had or had not told her health care providers. Besides, said the court, every competent litigator instructs a deponent not to volunteer information and to tell the truth. Nothing “prevents a party who was not directly questioned about an issue from supplementing incomplete deposition testimony with a sworn affidavit.”

Was conduct unwelcome? Once it had dispensed with the motion to strike, the court found more than an adequate basis from which a reasonable jury could conclude that she was subjected to unlawful sexual harassment under Title VII and state law. There was evidence the employee admitted to engaging in off-color banter, injecting sexuality into her communications, and initiating social communications via text messaging with her coworkers, including a post-termination Facebook posting. That Facebook posting, while largely positive, also thanked some coworkers for “threatening to knock out some rude laborers,” and for “encouraging me to take no shit from a pervert.” Conversely, there was testimony to the effect that, at first, she was trying to “fit in” to a male-dominated workforce as the only woman foreman, but over time found the repeated sexual comments, innuendos, and overtures troubling. She explained “I was made to feel that I was viewed as a sex object, and not for my job performance. I was like a mascot to them. I was not taken seriously as an employee.” Whether their conduct was unwelcome was “quintessentially a question of fact,” for a jury, concluded the court.

Policy not determinative. Moreover, the fact that Jarrett had an anti-harassment policy was not enough to grant it summary judgment. There was a material fact question as to whether the employee had actually directly complained to the owner of the company (which Jarrett disputed); moreover, there was evidence that she did not receive the policy until months into her employment, and did not receive training on the policy. Even leaving aside the employee’s claim that the owner told her to handle any problems with her supervisor herself, she further alleged that she told her supervisor that his statements and/or advances were unwelcome and “under the policy it was his duty to report it up the chain of command.” Finally, she argued the evidence supported a finding that her supervisor had engaged in workplace harassment that led to a tangible employment action—her eventual termination. Summary judgment was denied on her sexual harassment claims.

Emotional distress. But her emotional distress claim failed as a matter of law. Not only was there a serious question as to whether she could establish “a serious or severe mental injury,” the employee had failed to establish the outrageousness element. The facts she presented, even if true, “are, unfortunately, not atypical of the fact pattern presented in most harassment cases,” quoted the court, dismissing her intentional infliction of emotional distress claim under Tennessee law.