Employment Law


J.K. Simms

The United States District Court for the Eastern District of Tennessee granted summary judgment on all discrimination, harassment and retaliation claims asserted against a Thompson Burton client in the staffing industry. The case demonstrates that regardless of how harmless an employer might view conduct complained of by an employee or how bizarre an employer might view the employee’s complaints, if an employer responds appropriately to address the complaints it stands a decent chance of having the lawsuit dismissed.The Court’s ruling can be read in its entirety here. In this case, the Plaintiff alleged an assortment of inappropriate conduct by her manager, which Plaintiff argued created a hostile working environment in an office with only 3 employees, all of which are female. The conduct complained of by Plaintiff included:

  • Discussion of undergarment preferences in office
  • Lifting of a shirt to show a particular type of bra worn by supervisor, where breast became exposed
  • Comments directed at plaintiff’s “big hoobie boobies”
  • Discussion of the novel, The Help, including allegedly assigning the Plaintiff and another co-worker nicknames based on characters from the novel.
  • Discussion of gay adoptive parents, which Plaintiff interpreted as indicative of her manager being a lesbian.
  • Comments that were derogatory toward Hispanics
  • The manager allegedly bringing a gun to the office and claiming she was “bitch in charge”.

The Plaintiff believed that some of the comments made by her manager (a mother of two children) may have been sexually motivated. The Plaintiff reported all of this alleged conduct to her Regional Manager (i.e., her boss’s boss). After hearing all of the Plaintiff’s complaints, the Regional Manager spoke with the Manager, who stated that she was unaware that any of her comments made Plaintiff uncomfortable. Regardless, the Regional Manager and Manager agreed that all conversations going forward should be kept “strictly professional”. The Regional Manager then had a follow up meeting with the Plaintiff and informed her that she had spoken with the Manager.The Plaintiff was subsequently assigned to a different shift, which she alleged was done in retaliation for her complaints. When she was hired, she and the other staffing coordinator both worked the 8:00 a.m. to 5:00 p.m. shift. The company then decided to make this particular office’s schedules consistent with the company’s other offices by staggering the staffing coordinators’ schedules, with one working from 7:00 a.m. to 4:00 p.m. and the other working from 9:00 a.m. to 6:00 p.m.Of the two staffing coordinators, the Plaintiff was the more junior employee and the more senior employee was given first choice as to which shift to work. The more senior employee chose the earlier shift, leaving the Plaintiff with the 9:00 a.m. to 6:00 p.m. shift. Plaintiff claimed this later shift interfered with her nightly family devotional, which usually occurred between 6:00 and 6:30. The company was not aware of Plaintiff’s nightly devotional until after the schedules were changed. Plaintiff, however, alleged that she made it known from the beginning of her employment that she had family devotionals every night at a particular time.We filed a motion for summary judgment on behalf of our client and the Court granted it on all claims. In doing so, the Court noted the following:

  • In an attempt to prove same sex sexual harassment, the Plaintiff alleged that her Manager was homosexual, but the only instance in which her manager’s sexual orientation was mentioned, she said affirmatively that she was not a lesbian. The court noted this is “hardly credible evidence that [her Manager] is a lesbian, especially since [she] is the mother of two and was married to a man for nearly twenty years.”
  • “Infrequent comments about [Plaintiff’s] breasts, sensitive as the topic may be, is simply insufficient to suggest that [her Manager] was motivated by a sexual desire. . . . Not every instance of sexual harassment, no matter how crude or vulgar, automatically amounts to discrimination based on sex.”
  • Plaintiff’s allegation that her manager brought a gun in the office and referred to herself as “the bitch in charge” had no relevance.
  • The bra incident and subsequent offhand comments about breasts would not unreasonably interfere with the Plaintiff’s work performance or create an intolerable work environment.
  • Assigning nicknames based on The Help was not severe or pervasive enough to constitute a hostile work environment
  • Plaintiff had no evidence to support her allegation that offensive conduct was “targeted” at her because of her religious views. “To allow such a baseless accusation to support a Title VII claim would essentially do away with the requirement that a work environment be both subjectively and objectively hostile or abusive.
  • Even cumulatively the evidence in this case “does not rise to the level of severe or pervasive harassment.”
  • The adjustment of Plaintiff’s shift by one hour did not amount to an “adverse employment action.”

There are a number of take-home messages and lessons from this case. First, not all conduct that might be offensive to a particular employee amounts to a violation of Title VII. Second, and most important for employers is that regardless of how bizarre an employee’s allegations might be, you will be in much better standing with the Court if you listen to the complaints, conduct an appropriate investigation and take the necessary action to address the complaints. The undisputed evidence in this case showed that after the Regional Manager spoke with the Manager, there was never another instance of the Manager making inappropriate or offensive comments. That is how it is supposed to work.If you would like advice on handling your employment law issues, either from a preventative standpoint or if you need assistance with matter in litigation or before the U.S. Equal Employment Opportunity Commission, please contact me.

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