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‘Boorish’ Comments Can Create ‘Hostile Environment’

Deborah Elkins//December 30, 2014

‘Boorish’ Comments Can Create ‘Hostile Environment’

Deborah Elkins//December 30, 2014//

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A co-worker’s persistent “boorish” and “moronic” sexual comments, gestures and invitations to plaintiff and other co-workers, whose complaint supervisors allegedly ignored, supported plaintiff’s request for a trial on her hostile environment claim, but the 4th Circuit upholds summary judgment for employer on plaintiff’s retaliatory termination claim.

The alleged primary harasser called plaintiff “fresh meat,” made lewd gestures and talked about oral sex. He and another male co-worker frequently grabbed their crotches and said “these nuts are looking for you.”

Throughout its decision, the district court emphasized that it did not condone the “boorish,” “moronic,” “inappropriate,” “immature,” and “unprofessional” conduct plaintiff alleged had occurred. Nonetheless, the district court held that although some of the comments made by the two co-workers were clearly inappropriate, their behavior was simply not of the same magnitude as that which the 4th Circuit has found sufficiently severe or pervasive to constitute actionable sexual harassment. On this record, however, we conclude the district court erred in stating that the two co-workers’ conduct could not constitute “severe or pervasive” harassment as a matter of law. We vacate summary judgment for defendants and remand for further proceedings on the hostile work environment claim.

The totality of the record before us creates too close a question as to whether the co-workers’ behavior created an objectively hostile or abusive work environment to be decided on summary judgment. The environment alleged here consisted of comments of varying degrees of offensiveness being made to plaintiff several times a week for well over a year. Similar comments were made with the same frequency to other co-workers. When plaintiff or her co-workers complained to their leads and immediate supervisors, limited action was taken to stop the offending behavior.

To be sure, on this record, some factors pull toward a finding that the offensive behavior was actionable, while other factors pull in the opposite direction. But neither we nor the district court are called upon to weigh that evidence at this stage. Instead, the court’s task is simply to examine whether the record contains proof from which a reasonable trier of fact could conclude that the environment was pervaded with discriminatory conduct aimed to humiliate, ridicule or intimidate, thereby creating an abusive atmosphere. Factual details and credibility determinations are not issues to be resolved at the summary judgment stage. It is sufficient that plaintiff’s proffered evidence creates a genuine issue of fact as to whether her environment was sufficiently severe or pervasive to alter the conditions of her employment.

We have previously recognized that harassment need not involve touching or be “physically threatening” in order to be actionable. In this case a reasonable jury could rationally find that the consistent and repeated comments made by the two co-workers painted women in a sexually subservient and demeaning light that is sufficiently severe or pervasive does not mean a reasonable jury could not conclude otherwise. The facts presented in the record are simply too close to that line for summary judgment to be appropriate.

The district court did not err in awarding summary judgment on plaintiff’s retaliation claim. The circumstances and timing of plaintiff’s termination – shortly after she and her co-worker/boyfriend confronted the alleged harassers and plaintiff poked the most persistent harasser in the chest – do not support a reasonable inference of pretext in this case. Numerous witnesses stated that plaintiff physically assaulted the alleged harasser, not the other way around. Although plaintiff accused him of inappropriate comments as part of her statement, none of the evidence indicated he had “laid hands on” plaintiff or another employee during the altercation. The record on this point supports employer’s legitimate, nonretaliatory explanation for its termination decision. Nor has plaintiff created a triable issue as to pretext based on employer’s failure to follow its written sexual harassment policies after she first reported being harassed.

Affirmed in part, vacated in part and remanded.

Walker v. Mod-U-Kraf Homes LLC (Agee) No. 14-1038, Dec. 23, 2014; USDC at Roanoke, Va. (Conrad) Terry N. Grimes for appellant; James J. O’Keeffe IV for appellee. VLW 014-2-213, 24 pp.

VLW 014-2-213

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