Virginia Lawyers Weekly VA Lawyers Weekly
A woman who says she was subjected to frequent lewd comments by a co-worker can go forward with her Title VII hostile environment claim against her company, the 4th U.S. Circuit Court of Appeals has ruled.
The woman and the man she was dating were fired for an altercation with the alleged harasser, a man named Mullins; witnesses said the pair started the incident in which they allegedly threatened Mullins.
U.S. District Judge Glen Conrad had dismissed the claim, after reviewing existing Title VII law and noting there had been no physical touching, propositions or demonstration of sexual acts. The 4th Circuit found the question too close to decide on summary judgment.
The case is Walker v. Mod-U-Kraf Homes LLC (VLW 014-2-213). Judge G. Steven Agee wrote the Dec. 23 panel opinion.
Constant comments
The plaintiff, Walker, worked in the finishing department at the company, which is based in Rocky Mount and manufactures prefabricated homes.
Two or three times a week, Mullins would “grab his crotch” and make rude, suggestive comments to Walker. When Walker started dating a man named Cassidy who worked there, Mullins would make remarks about oral sex.
When she complained to the lead co-worker in her department, a woman named Burnopp, Burnopp simply told Walker to “ignore” him. Mullins “does that to everybody,” Burnopp told Walker.
Frustrated at that answer, Walker went to her supervisor, who spoke to Mullins, who toned down the frequency of his comments “for a while,” Agee wrote.
One day in July 2011, as the crew broke for lunch, Mullins made repeated oral sex comments about Walker and Cassidy.
After lunch, the pair confronted Mullins. Witnesses said Walker had poked Mullins in the chest while telling him off; Cassidy held a hammer, which the witnesses said was threatening.
Both employees were terminated as a result. Walker later filed a complaint in federal court, alleging a hostile environment based on sexual harassment; the district judge granted summary judgment for the company.
Agee noted that part of one prong of the test of a hostile environment claim requires a plaintiff to show, on both a subjective and objective basis, that the environment was hostile or abusive. She proved the subjective part by her own reaction, but Conrad ruled she had not proven the objective part. He acknowledged that Mullins’ and others’ behavior was “boorish,” “moronic” and “immature.”
On appeal, the panel found that the totality of the record “creates too close a question” to decide the matter on summary judgment, Agee said.
The district judge had distinguished this case from prior cases where “the harasser touched the victim, propositioned or threatened her, or engaged in demonstrations of sexual acts.”
Here, there was repeated crude commentary directed toward the plaintiff.
Agee wrote the fact that there are “arguments that suggest that this conduct may not be sufficiently severe or pervasive does not mean that a reasonable jury could not conclude otherwise.
“At bottom, the facts presented in the record are simply too close to that line for summary judgment to be appropriate,” concluded for the unanimous panel.
The court remanded the hostile environment claim back to district court.
