Aryain v. Wal-Mart Stores Texas LP, No. 07-20552 (5th Cir. July 8, 2008) reverses summary judgment in a supervisor sex harassment case, holding the district court prematurely adjudicated both the subjective offensiveness of the behavior and the Faragher/Ellerth defense.
Jenna Aryain was a cashier at the Tire Lube Express (TLE) department. For four months she was (according to the summary judgment record) subjected to appalling, daily remarks by her supervisor Darrel Hayes about her physical looks, which included crude sexual advances. At that point, her father complained to the store and she was transferred to the infant’s department. The store manager, Gwendolyn Furr, meanwhile concluded that “Aryain’s harassment complaint could not be substantiated” and told Aryain “that Wal-Mart could not pursue any disciplinary action against Hayes based on Aryain’s allegations of sexual harassment.”
Reversing summary judgment on the harassment claim, that panel found that Aryain made out a prima facie case. It held that there was a genuine issue of material fact about whether she was subjectively offended by the behavior: “Aryain told Furr that she would rate Hayes’s harassing conduct as a ten on a scale of one to ten. She also stated that she was happy to be away from Hayes, that she did not want to work alone with Hayes, and that she felt humiliated every time he made one of his sexually-charged comments. Finally, Aryain indicated that had her father not raised the initial complaint, she would have gone to Furr. Wal-Mart also ignores the fact that Aryain pursued harassment complaints with Wal-Mart and the EEOC. This evidence is sufficient to allow a jury to conclude that Aryain subjectively perceived her working environment in the TLE department as hostile or abusive.”
The district court had also held that Wal-Mart succeeded in its affirmative defense, but the panel perceived a triable issue about whether Wal-Mart exercised reasonable care to prevent and correct harassment. Although the company brought Hayes’s harassment to an end by transferring the employee to the infant department — after a complaint from her father — the record included evidence that Wal-Mart was on notice earlier about the harassment:
“The summary judgment record includes evidence indicating that Wal-Mart knew of Hayes’s harassing conduct prior to June 20. An affidavit filed by Aryain and Wal-Mart’s internal record of the investigation both provide that Aryain complained to C.J. Coker, another of her supervisors in the TLE department, about Hayes’s comments. The record does not indicate when Coker received this complaint. We know only that it must have occurred after Hayes’s harassing conduct began in February and before Coker was interviewed by Furr on June 23. Aryain complained to Coker that Hayes made comments that generally ‘made her uncomfortable,’ including comments about Aryain’s ‘butt.'”
Being the Fifth Circuit, the panel naturally affirmed summary judgment on her constructive discharge and retaliation claims, but a progressive decision from that court is like finding cold, fresh spring in the desert.