Court Finds Jury Must Weigh The Evidence To Determine If Company Is Liable

A federal appellate court recently held that a jury must determine whe-ther a single act is sufficient to support a worker’s hostile work environment claim. According to the court, “a single act can create a hostile environment if it is severe enough . . ., and instances of uninvited physical contact with intimate parts of the body are among the most severe types of sexual harassment.” Berry v. Chicago Transit Authority, No. 07-2288, Seventh Circuit Court of Appeals (August 23, 2010).

Factual Background

Cynthia Berry was hired by the Chicago Transit Authority (CTA) in 2002 as a carpenter. In January 2006, Berry was one of only two female employees among about 50 individuals working in Area 315 at the CTA’s South Shops facility, and the only female carpenter.

Employees in Area 315 often played cards at an outside picnic table. During her morning break, Berry sat down at the table with mechanic Earl Marshall and two other male employees. Philip Carmichael, an electrician, followed Berry into the break area. Marshall wanted to play cards with Carmichael as his partner. He ordered Berry to get up from the table, but she refused. Carmichael then sat down and straddled the bench with his back toward Berry.

According to Berry, Carmichael began rubbing his back against her shoulder. She jumped up, told him to stop, and moved to the other end of the table. Although Marshall again told Berry to get up from the table, she remained seated. Berry alleged that Carmichael then lifted her up from the bench, grabbing her breasts in the process. While holding her up in the air, Carmichael allegedly rubbed her buttocks against the front of his body three times before bringing her down to the ground. Berry claimed that he then pushed her into a fence.

On the following day, Berry reported the incident to Michael Gorman, her supervisor. According to Berry, Gorman told her that she was a “pain in the butt” and that she could lose her job if she filed charges against Carmichael. Berry alleged that Gorman also said that he was “going to do whatever it takes to protect CTA.” Nonetheless, Gorman reported the incident to a CTA equal employment opportunity investigator, and collected statements from Berry and the other witnesses.

In the meantime, Berry called the police, reporting that she had been attacked at work. The police spoke to Berry, Carmichael and Gorman, and determined, based on that investigation, that Berry actually had been the aggressor. The CTA investigation ultimately reached a similar conclusion. The investigator found no substantial evidence that Berry had been sexually harassed. Instead, she determined that Berry had been the aggressor and sat between Carmichael’s legs. According to Carmichael, he picked her up by the waist to move her out of the way.

Berry accused Gorman of sabotaging the investigation to prevent the alleged harassers from being punished. She then filed a lawsuit alleging hostile work environment sexual harassment (among other claims).

Legal Analysis

The trial judge granted summary judgment in CTA’s favor. The judge found that the hostile environment claim could not go forward because CTA took prompt and reasonable steps to investigate and rectify the alleged misconduct.

To survive summary judgment on this claim, Berry had to show that she was subjected to unwelcome conduct because of her sex, that the conduct was so severe or pervasive that it created a hostile environment, and that CTA should be held liable. Berry argued that she experienced a hostile environment when Carmichael rubbed his body with hers and that Gorman’s dismissive comments to her about her complaints formed the basis for CTA’s liability. The trial judge had discounted Berry’s uncorroborated testimony on those issues when it found in CTA’s favor.

The Seventh Circuit Court of Appeals first noted that personal knowledge or firsthand experience of a plaintiff can create a “disputed fact” that can only be resolved by a jury. According to the Seventh Circuit, the trial judge improperly discounted Berry’s testimony, which was based on her personal encounters with both Carmichael and Gorman. Such testimony, the court ruled, could create issues of material fact sufficient to preclude summary judgment.

The Seventh Circuit further held that a single act can create a hostile environment if it is severe enough. Carmichael’s actions, as alleged by Berry, qualify as such an act. Notably, the court also determined – based solely on Berry’s uncorroborated testimony as to Gorman’s remarks – that a reasonable factfinder could reach the conclusion that CTA, through its manager, had “maliciously thwarted any legitimate investigation, and that CTA was therefore negligent or worse in responding to [Berry’s] report of harassment.” Thus, the court reinstated Berry’s hostile work environment claim.

Practical Impact

According to Carol Poplawski, a shareholder in Ogletree Deakins’ Chicago office: “Although this decision is noteworthy for its holding that a single severe act of harassment can create a hostile environment, the real lesson lies in the alleged failure of the employee’s first line supervisor to properly respond to her complaint. An employer can have a thorough policy against harassment, backed up by HR professionals who know how to recognize and respond to workplace harassment, but unless the supervisors are properly trained as well, that policy is rendered ineffective. An employer must conduct periodic training for its managers to avoid the result in this case.”

Note: This article was published in the September/October 2010 issue of The Employment Law Authority.

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