Coworker’s happy-hour conduct supports hostile work environment claim

By Kathleen Kapusta, J.D.

A coworker’s alleged harassment of an employee, including running his fingers down her back, grabbing her hand, brushing against her and grunting, and attempting to feed her food was sufficiently severe and pervasive, a federal district court in Connecticut ruled, finding also that it could be imputed to her employer even though some of the harassment occurred after work hours outside of the workplace at a happy hour. Accordingly, the court denied summary judgment against her Title VII sexual harassment claim. The employee’s retaliation and negligent and reckless supervision claims also advanced (Echevarria v. Utitec, Inc., September 28, 2017, Bryant, V.).

The receptionist and managerial assistant alleged that when the coworker came by her desk to speak to her about his personal life, work complaints, and her appearance, he would look at her in an “uncomfortable” or “dirty” way. Although he stopped making comments about her appearance after she asked him not to, he continued to give her “I-want-to-have-sex-with-you” looks.

Happy hour. One night, the employee and nine coworkers, including two managers and the alleged harasser, went to a happy hour after work. While there, the coworker tried to feed her food, asked her where she was going afterward, why she did not let her hair down, and why she seemed uptight. One of the managers witnessed this conduct, and described it as “pestering” and “irritating.” Although the employee did not report the conduct to HR immediately, the manager ultimately told the CEO. The CEO, in turn, spoke to the HR manager, who decided not to open a formal investigation because the conduct did not occur at a work event or during work hours.

About a month later, the employee reported the conduct to the HR manager, who then issued a written reprimand to the coworker. Before it was issued, however, the coworker came up behind the employee and swiped his fingers down her back. When she tried to get away, he grabbed her hand for a couple of seconds. The employee reported the incident to the CEO. She claimed that sometime after that, the coworker brushed her shoulder and grunted and on another occasion pushed into her shoulder as he walked past her.

Relocation. When the company underwent a renovation a few months later, it informed the employee that her desk would be moved temporarily. Because it would have placed her closer to the coworker, she objected and was offered a transfer to another administrative position, which the company claimed was a promotion. The employee, however, believed it provided less opportunity for advancement. She ultimately took a substantial amount of medical leave and was terminated when she did not return to work.

Hostile work environment. At issue on her hostile work environment claim was whether the alleged harassment was sufficiently severe or pervasive. Although the company argued that the relevant incidents were “few and far between,” the court disagreed, observing that the coworker’s alleged conduct progressed from comments to touching the employee with an object (food), to touching her with his body. A reasonable jury could find these incidents constituted an unwanted invasion of the employee’s physical space of a highly personal and intimidating nature.

Imputed to employer. The company relied on Devlin v. Teachers’ Ins. & Annuity Ass’n of Am. to argue that it could not be held responsible for the coworker’s conduct at the happy hour because it was between coworkers and happened after work hours, off-site, and at a non-company event. However, the court found Devlin distinguishable. In Devlin, the only instance of harassment at issue took place during the off-site event and the employer responded by demoting the harasser. Here, in contrast, the alleged happy-hour harassment was reported by a supervisor but no formal action was taken until several weeks later when the employee filed a separate complaint. As a consequence, the coworker was free to later make comments about the happy hour to the employee and to escalate his behavior.

Moreover, said the court quoting another case, a “practical or constructive extension of the work environment” is often necessary because an “offender’s license to engage in sexual misconduct towards a co-worker outside the company may derive and draw comfort from his understanding of what is permissible behavior in the workplace or his perception of how far he can push the limits and what discriminatory wrongs against a fellow employee he can inflict with impunity.” In the court’s view, this was especially true where, as here, harassing conduct occurred during an event planned and attended by a sizable group of co-workers, including two supervisors.

Retaliation. As to the employee’s retaliation claim, the court rejected the company’s contention that a threatened workstation move was not an adverse employment action. Here, said the court, a reasonable woman whose coworker allegedly subjected her to an unwanted invasion of her personal space could certainly want to limit her interaction with him, and might refrain from making a formal discrimination complaint if she believed doing so would result in being forced to work in close proximity to him. While there was some evidence that legitimate business needs required her workspace to be near her supervisor, the company failed to offer evidence that alternative locations were unavailable. As to the company’s offer to transfer the employee, fact disputes existed as to whether it was actually a more desirable position, as the company claimed.

The court also found the company’s failure to investigate the employee’s reports of harassment stemming from the grunting incident and her reports that he was intentionally coming to her area could be adverse actions. Although the company argued it could not have known these complaints were protected, the court found when considered with her previous complaints, it was difficult to believe it would not have known that when she complained of further physical contact and “grunting” she did not believe these actions were a form of sexual harassment.

Negligent/reckless supervision. Finally, the employee claimed that the company was reckless and negligent when it failed to take remedial action against the coworker prior to the happy hour, given that her manager had observed him being “handsy” or “touchy” with female employees, and this failure gave him license to assault her during the happy hour. Here, the court found fact issues existed regarding the company’s knowledge of the coworker’s propensity to harass the employee or other female employees prior to the happy hour. Fact issues also precluded summary judgment on the issue of whether the company was reckless and negligent by failing to take any remedial action immediately after the happy hour, because a manager was present to witness the behavior.

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