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Greg Naylor, Editor
Whitfield & Eddy, P.L.C.
Vol. 14, No. 12
April 2008
HOSTILE WORK ENVIRONMENT
Employees' personality clash leads to sexual harassment suit
. . . Eighth Circuit finds evidence of coworker dislike, not severe or pervasive harassment . . .
Under Title VII of the Civil Rights Act of 1964, sexual harassment by coworkers is illegal. To be actionable, however, the harassment must be severe or pervasive. Further, an employer can avoid liability by taking prompt and effective remedial action
to stop any alleged harassment.
So where's the line between a personality conflict and coworker harassment? The Eighth U.S. Circuit Court of Appeals (which covers Iowa) was forced to address that and related questions in a recent case involving a large furniture chain.
Coworker conflict leads to harassment charges
Deb Anda was a part-time commissioned furniture salesperson at Wickes Furniture Company's Coon Rapids, Minnesota, location. She worked with several salespeople at the store, including Ryan Carlson, Ernesto Flores, Derek Knott, and Tim Mack. The
company had an "up-list" system that allowed salespeople to put their names on a list to determine the order in which they would be assigned to assist customers. If a previous customer returned to the store, the original salesperson was assigned to
assist that customer.
Wickes had a business conduct manual and a harassment policy that prohibited any unlawful and improper harassment of employees. The policy provided examples of harassing behavior, outlined the consequences for violating the policy, and instructed
employees who felt victimized by harassment to immediately report the incident. Anda received copies of the manual and the policy, which stated that employees were allowed to go to any supervisor to discuss issues of concern during their employment.
Anda had a significant personality conflict with Carlson. In early September 2003, he accused her of stealing another employee's customer. She responded by calling him a "leviathan." (Bet he had to look that one up in the dictionary.) He took offense
and reported the incident to the store manager, Dave Bruber. When Anda was asked about the incident, she claimed that Carlson made inappropriate comments to her, including remarking about the appearance of her posterior.
Three days later, Carlson again accused Anda of disruptive behavior, claiming that she was stealing customers and engaging in name-calling and that she told him to stay away from another employee. Bruber, following instructions from the HR
department, issued a verbal reprimand to Anda. At that time, she told another supervisor that she intended to compile a list of allegations against Carlson.
On September 20, Anda provided her list of allegations about Carlson to her store manager. She claimed that he was unable to "control his temper," made inappropriate comments on the sales floor, and had a tendency to "switch" blame. She also listed
11 incidents that she claimed Carlson instigated between July and September, including two incidents involving alleged customer-stealing, three involving gossip between salespeople, and three involving sexual comments. Bruber again followed Wickes'
corporate HR instructions, this time issuing a verbal reprimand to Carlson.
Nine days later, Anda submitted a two-week notice of resignation to her store manager. She claimed that Carlson "scared" her and was accusing her of refusing to follow the company's rules for customer assignments. Bruber asked her not to quit, saying
he would continue to monitor Carlson's conduct to determine whether he was acting inappropriately and discipline him if he was. The next day, Anda reported that she wouldn't be returning to the store to complete her final two weeks because of her
problems with Carlson.
Anda later wrote a letter to the company's corporate vice president of HR stating that she believed that Bruber was very hard-working and dedicated and that he had done his best to deal with disciplinary incidents involving Carlson. In March 2004,
she filed an agency charge of sex discrimination, and after receiving a right-to- sue notice, she filed a federal lawsuit alleging hostile work environment discrimination and constructive discharge.
Unreported incidents of coworker harassment
During discovery (the pretrial fact-finding phase), Anda described a series of sexual harassment incidents involving other coworkers at Wickes, even though she hadn't reported them to the company. She alleged that Knott made several sexual comments
to her, and he gave her bear hugs and referred to women in profane and derogatory terms. She also claimed that Flores and Mack made sexual statements, and Flores even jumped on her and simulated having sex with her when she was sitting on a sofa.
Wickes asked the district court to dismiss Anda's claims without a trial. The court found that she didn't present sufficient evidence to create a genuine question about whether Wickes failed to take prompt and effective remedial action to address her
complaints about Carlson or whether the company knew or should have known about the incidents involving other coworkers. The court granted the company's request and dismissed the case, and Anda appealed to the Eighth Circuit.
Coworker fight or harassment?
In attempting to establish a prima facie, or minimally sufficient, case of hostile work environment harassment, Anda was required to show that:
- she endured unwelcome conduct as a member of a protected group;
- there was a causal connection between the harassment and her protected-group status;
- the harassment affected a term or condition of her employment; and
- her
employer knew or should have known about the harassment and failed to take prompt and effective remedial action.
Further, the court noted that for a hostile work environment to exist, "the [employee's] workplace [must be] permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of [her] employment and to create an abusive work environment."
In reviewing the record on appeal, the court found that Carlson's conduct toward Anda before her resignation didn't rise to the level of harassment sufficient to establish a hostile work environment. Most of her 11 complaints about him were
indicative of a personality conflict, weren't sexual in nature, and involved arguments over customers or gossip between salespeople. And even if he did make a couple of sexual comments, apparently including an observation that Anda had a large rear,
the court found that his "isolated comments, only two of which have any sexual overtones, do not create a genuine issue of material fact as to whether the workplace was so permeated with discriminatory conduct that a hostile work environment under
Title VII existed. . . . Title VII does not set forth a general civility code for the American workplace."
In rejecting her appeal, the court held that even if Anda's allegations rose to the level of sexual harassment, Wickes took prompt and effective remedial action to address the problems. Specifically, Bruber, the store manager, told her that he didn't
want to lose her as an employee. He also investigated and disciplined Carlson and eventually terminated him on October 15. Indeed, according to the court, "because the undisputed evidence shows that Wickes dealt with [her] specific complaints about
Carlson in a prompt and effective manner, Anda does not raise a material question of fact as to whether [the company] failed to take prompt and effective remedial action."
The court found that the record was devoid of any evidence that Wickes knew about the supposed harassment by Flores, Knott, and Mack before Anda decided to resign on September 29. Anda also claimed that Bruber made two sexual comments, but the court
found that those statements weren't directed at her and didn't rise to the level of severe or pervasive conduct to support her hostile work environment claim. Further, she hadn't given any indication that she ever felt harassed by her store manager.
In fact, she had noted in a letter that he was "very hard working and dedicated" and that she felt he had done his best to eliminate Carlson's improper conduct.
The court also affirmed the dismissal of Anda's constructive discharge claim because Wickes wasn't aware of her complaints about any of the other salespeople when she submitted her resignation. Consequently, she didn't create a material question of
fact about whether her employer intended to force her to quit. In addition, the court ruled that she didn't give Wickes a reasonable opportunity to correct the situation before she decided to walk out the door. Anda v. Wickes Furniture Co., 2008 U.S.
App. LEXIS 3433 (8th Cir., 2008).
'I'm mad as h___ , and I won't take it anymore'
So is it common for a personality conflict between coworkers to turn into a harassment lawsuit? In reality, it's far too common.
Anda didn't like Carlson, and he didn't like her. Like two junior high-school kids, they fought over customers, engaged in name-calling, and generally did everything they could to create a difficult working environment for each other. Even though he
was eventually terminated, she used their personality clash as the foundation for her sexual harassment case.
On appeal, the Eighth Circuit recognized the obvious personal tiff between Anda and Carlson. The court also noted that Carlson made only two allegedly sexual comments to Anda, and they fell far short of creating a severe and pervasive hostile work
environment.
Anda pointed to a variety of supposedly offensive comments and actions by other coworkers in an effort to bolster her claim that she was a victim of sexual harassment. Ultimately, however, the court found that the actions she was allegedly subjected
to weren't severe and pervasive and Wickes took prompt and effective remedial action to stop any offensive behavior.
So was Anda's lawsuit just a bad legal claim that missed the mark? Unfortunately, the general scenario highlighted by this case is repeated time and time again in lawsuits filed every day in the United States. Employees, irritated by coworkers with
whom they have personality conflicts, look for legal recourse and often attempt to build sexual harassment cases on petty gripes and complaints.
Of course, there's smoke if the victim alleges she was subjected to any sexual comments or actions. But courts rarely find a sufficient fire to sustain a harassment claim based on mundane personal affronts, particularly if the employer reacted in a
prompt and effective way to shut down any violation of company rules. Despite the claim's lack of merit, however, the employer is forced to defend itself in court, experiencing a substantial drain of time and expensive legal fees.
Employment tip
Is there a solution to the "he bugs me, I'm mad, and now I'm gonna sue" syndrome? Personality clashes between coworkers are going to occur; sometimes, there's nothing you can do about that. Still, effective managerial oversight can often prevent a
spark of personal indignation from turning into a litigation wildfire.
Sure, you didn't hire your managers to be baby sitters. Nevertheless, you should encourage them to keep a close and watchful eye on coworker relationships. Are your employees treating each other with respect? Is horseplay kept to a minimum? Are
coworkers focusing on production and customer service rather than fueling the gossip and rumor mills?
Are your managers taking effective steps to address any problems that do occur? Do they coach employees to act in a professional manner? Do they take prompt and effective remedial action if the personality clash gets out of hand? Granted, we're
talking "soft tissue" managerial skills when it comes to spotting and attempting to resolve petty personality conflicts between employees. At the same time, companies that spot problems between coworkers at an early juncture have a shot at resolving
their differences, including separating and even transferring employees who have irreconcilable problems. Early intervention can often sidetrack potential civil rights charges and other legal claims that tend to follow fights between employees who
detest each other.
Employee irritation, workplace slights, and disrespectful conduct can lead to litigation that has nothing to do with protected-class discrimination or harassment. Take the time to train your management team to coach your employees in team-building,
including the importance of respectful conduct. Don't let your business become a target for a discrimination or harassment lawsuit simply because a personality conflict has been allowed to morph out of control.
Find out more about preventing harassment lawsuits in the subscribers' area of www.HRhero.com, the website for Iowa Employment Law Letter. You have access to an HR Executive Special Report on the
subject: "Workplace Harassment Trail Guide: Avoiding the Avalanche Zone." Just log in and scroll down to the link for all the Special Report titles. Need help? Call customer service at (800) 274-6774.
Copyright 2008 M. Lee Smith Publishers LLC
IOWA EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual legal problems nor does it provide legal advice. The newsletter provides general information on current developments on Iowa employment issues. Questions about individual
legal problems should be addressed to the attorney of your choice.
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