A few days ago, I posted my article on PAR Electrical Contractors, Inc. v. Bevelle , in which the West Virginia Supreme Court ruled that a single episode involving multiple uses of the N-word could create a racially hostile work environment.
The US Court of Appeals for the Seventh Circuit just released an opinion in Berry v. Chicago Transit Authority, – F.3d –, – WL — (7th Cir. August 23, 2010), which raises the similar issue: Can a single instance of sexual harassment create a hostile work environment? And the answer was yes, depending on the circumstances.
Ms. Berry is Sexually Harassed in a Single Incident
Cynthia Berry was an employee at the Chicago Transit Authority. She was on her break and sat at a picnic style table with three male co-workers. A fourth male co-worker, Philip Carmichael, had followed her to the picnic area and ordered Ms. Berry to get up from the table. Offended by Mr. Carmichael’s “commanding tone”, Ms. Berry remained seated. Mr. Carmichael then sat down and “straddled the bench” so he was facing one of the male co-workers at the picnic table, and so that Mr. Carmichael’s back was close to Ms. Berry. The other three male co-workers got up from where they were seated at the picnic table and moved to the other end of the table. Then:
Berry says Carmichael remained where he was seated and began rubbing his back against her shoulder. She jumped up, told him not to rub himself against her, and sat down next to Hardy at the other end of the table. At this point,
Berry says, Marshall began telling her to get up from the table again. Not wanting Marshall to think he could order her around, she remained seated, but began rubbing her temples to compose herself. According to Berry, she next felt Carmichael grabbing her breasts and lifting her up from the bench. Holding her in the air, he rubbed her buttocks against the front of his body—from his chest to his penis—three times before bringing her to the ground with force. Berry landed off-balance, with only one leg on the ground, and says Carmichael then pushed her into a fence. Upset and wanting to avoid any men, she lay down in a bus for the rest of her shift.
Ms. Berry Complains, and it Doesn’t Go Well
The next day Ms. Berry complained to a supervisor about Mr. Carmichael’s conduct, and the supervisor responded that she was a “pain in the butt” and she could lose her job if she complained against Carmichael about the sexual misconduct.
Nonetheless, Ms. Berry then called the Chicago Transit Authority’s (CTA) equal employment opportunity investigator to complain and to request an investigation. Ms. Berry got a further hostile response to her complaint, and she then called the police the day after the incident.
The police, after investigating, decided that Ms. Berry had been the aggressor, and the company’s investigation came to the same conclusion. Carmichael alleged that Ms. Berry had sat down between his legs and that he had picked her up by the waist to move her out of his way.
Ms. Berry Files Suit, and More Bad News–Case Dismissed
Ms. Berry filed suit in part alleging a hostile work environment. The Chicago Transit Authority (CTA) moved for summary judgment to dismiss the case, in part alleging that her complaint, even if true, did not involve actions which could create a hostile work environment. The trial judge concluded that Mr. Carmichael’s conduct was sufficiently severe to create a hostile work environment, but concluded that Ms. Berry’s case should be dismissed because CTA took prompt and effective remedial action. So summary judgment was granted, and the case was dismissed.
The Appeal, Seventh Circuit Reverses
While this is not the main point of this article, the Seventh Circuit addressed the issue of whether Ms. Berry presented enough evidence to raise disputed questions of fact in opposing CTA’s motion for summary judgment. There had been a “misconception” that the uncorroborated testimony of the non-moving party (the party opposing the motion for summary judgment) was legally insufficient to create disputed fact questions where the testimony was “self-serving”. The Seventh Circuit rejected that misconception (the trial judge had disregarded some of Ms. Berry’s evidence because of that misconception).
Moving to the substance of the appeal, the Seventh Circuit held that Mr. Carmichael’s conduct, even though it occurred during only a single encounter with Ms. Berry, was severe enough to allow a jury to conclude that it created a hostile work environment:
With respect to Carmichael’s actions, … Berry has provided enough evidence to allow her hostile work environment claim to go forward. As the district court noted, a single act can create a hostile environment if it is severe enough, Lapka v. Chertoff, 517 F.3d 974, 983 (7th Cir. 2008); Hostetler v. Quality Dining, Inc., 218 F.3d 798, 808 (7th Cir. 2000), and instances of uninvited physical contact with intimate parts of the body are among the most severe types of sexual harassment, see Patton v. Keystone RV Co., 455 F.3d 812, 816 (7th Cir. 2006); Worth v. Tyer, 276 F.3d 249, 268 (7th Cir. 2001);
Baskerville v. Culligan Int’l Co., 50 F.3d 428, 430 (7th Cir. 1995). Carmichael’s actions, as alleged by Berry, qualify undeniably as unwelcome sexual conduct that established a hostile environment.
The Seventh Circuit then concluded that the trial judge incorrectly ruled that CTA could not be liable because it had taken prompt and appropriate remedial action. The proper test is whether the employer “took prompt action that was reasonably likely to prevent a reoccurrence”. Under those circumstances, it would be the employee’s burden to prove that the employer failed to take such corrective action. If the employer took the appropriate corrective action, then the employer could not be held liable for the sexual harassment of its non-managerial employee.
The trial judge decided that CTA took appropriate remedial action, largely because it completely disregarded Ms. Berry’s testimony because it was “uncorroborated”. That is the “misconception” that I describe above that the Seventh Circuit repudiated.
So once the Seventh Circuit treated Ms. Berry testimony about CTA’s investigation as admissible, it concluded that Ms. Berry’s testimony created a fact question on whether CTA conducted a fair investigation. Here is the Seventh’s Circuit’s analysis of the evidence:
She contends that, far from facilitating a genuine investigation into Carmichael’s conduct, Gorman sabotaged the investigation. Gorman’s eagerness to disregard the truth, she asserts, is reflected in his assurance that he didn’t care what really happened because Berry was “a pain in the butt,” his prediction that she would lose her job if she filed charges, and his promise that he was going to do “whatever it takes to protect CTA.” Berry’s testimony, and the inferences we must draw in her favor at this stage, see Scruggs, 587 F.3d at 838, would allow a reasonable factfinder to conclude that Gorman, acting as a manager, maliciously thwarted any legitimate investigation, and that the CTA was therefore negligent or worse in responding to her report of harassment. Granting summary judgment on Berry’s claim of a hostile work environment—as it related to Carmichael’s actions and the CTA’s liability—was thus improper.
So there was evidence that one of CTA’s key management employees was hostile to Ms. Berry complaining about sexual harassment and would do “whatever it takes to protect CTA”. That created questions for the jury to resolve as to whether CTA conducted a prompt investigation in good faith.
The trial judge’s decision on the hostile work environment claim was reversed, and the case was sent back to the trial judge for trial.