A federal district court in Mississippi recently refused to dismiss a sexual harassment lawsuit brought by a male employee who claimed that conduct engaged in by his male supervisor created a hostile work environment. According to the U.S. District Court for the Northern District of Mississippi, the alleged harassing conduct may have been sufficiently severe and pervasive to constitute a hostile work environment in violation of Title VII of the Civil Rights Act. Mariegard v. Wynne, No. 1:06CV53, U.S. District Court for the Northern District of Mississippi (March 12, 2008).
Factual Background
Gary Mariegard began working at the Columbus Air Force Base as a maintenance mechanic civil service employee in 1993. In May of 2003, Mariegard reported to the local union representative that his supervisor, Kenneth “Nick” Yearby, had been harassing him since 1998. Mariegard claimed that Yearby inappropriately touched him and made sexually explicit comments to him. Shortly thereafter, management moved Yearby into a non-supervisory position in a different building.
After an investigation substantiated harassment in the Housing Maintenance Section (where Mariegard was employed), he filed a complaint with the Equal Employment Opportunity (EEO) office on the base. The EEO office concluded its investigation on December 19, 2004, finding that the alleged harassment was not severe or pervasive and that the Air Force took appropriate steps to eliminate the problem. In the meantime, Mariegard retired from his job on October 15, 2004. Approximately one month later, he filed suit in federal court claiming that Yearby created a hostile work environment in violation of Title VII.
Legal Analysis
The court first rejected Mariegard’s claim of quid pro quo sexual harassment. According to the court, Mariegard, who had claimed to have retired for health reasons, was unable to show that he was constructively discharged as a result of Yearby’s harassment. Since he could not show that he suffered a “tangible employment action,” the court dismissed this claim.
With regard to the hostile work environment claim, the court found that Mariegard must show that Yearby’s actions were severe or pervasive. The court considered co-workers’ statements to the effect that Yearby often touched Mariegard on his genitals and buttocks and called him demeaning names. Yearby argued, however, that these actions were “horseplay.” The court also noted that there was conflicting evidence as to whether Mariegard asked Yearby to stop this behavior. Because it is disputed whether the conduct in question was severe or pervasive enough to warrant a hostile work environment, the court denied the Air Force’s motion for summary judgment on this claim.
Turning to the issue of whether the Air Force may raise an affirmative defense to Mariegard’s hostile work environment claim, the court noted that all employees must attend a four-hour training session on sexual harassment and that EEO posters were visible to members of every unit on the base. The court next considered whether the Air Force’s response to Mariegard’s allegations was prompt or reasonable. Mariegard claimed that he notified five supervisors about Yearby’s conduct, but that Yearby was reassigned only after Mariegard notified his union representative. Based on this evidence, the court concluded that Mariegard had presented a factual issue as to whether the Air Force’s response was prompt or reasonable.
The Air Force argued that Mariegard unreasonably failed to take advantage of the protective measures it offered through its EEO office. However, the court found that Mariegard complained to at least one of his supervisors without obtaining relief. Moreover, the court noted that the language on an EEO poster invited employees to, “attempt resolution locally first through the MEO/EEO office or your chain of command.” The court, therefore, concluded that Mariegard had put forth a genuine issue of material fact as to whether he took adequate steps to take advantage of the Air Force’s protective measures. Thus, the court refused to dismiss his hostile work environment claim.
Practical Impact
According to Ashley Cannady, an attorney in Ogletree Deakins’ Jackson office: “As illustrated in this case, it is imperative that employers and their supervisors take all complaints of sexual harassment seriously, including same-sex harassment. At least one supervisor indisputably received Mariegard’s complaint, counseled the alleged harasser, and believed that the problem was handled. This supervisor retired and the alleged harassment continued. While the employer may ultimately prevail at trial on this issue, the affirmative defense in this case was strictly applied. The employer’s reporting protocol stated complaints should be made to the ‘MEO/EEO office or your chain of command,’ which gave the employee several options as evidenced by his claim that he reported the allegations to five supervisors. Accordingly, it would be prudent for employers to adopt clearly defined reporting procedures to limit this type of exposure. Proper documentation of the remedial or preventive steps taken in response to an employee’s complaint is also essential to enhance an employer’s position that its response was prompt and reasonable.”
Note: This article was published in the April 4, 2008 issue of the Mississippi eAuthority.