Closing out the year, here's a valuable reminder from the Fourth Circuit that the decision of whether an employee has objectively suffered severe or pervasive harassment belongs to the jury, not the district court judge. The panel reverses summary judgment, on facts that the opinion recognizes are "close to the line," recognizing that important judgment calls on fact-finding and credibility cannot be resolved without a trial.
Walker v. Mod-U-Kraf Homes, Inc., No. 14-1038 (4th Cir. Dec. 23, 2014): Plaintiff Robin Walker worked on a production line for a builder of prefabricated homes. She alleged that a male co-worker (named Mullins) regularly made crude remarks:
"Two or three times a week, Mullins would grab his crotch and say, 'these nuts are looking for you.' (J.A. 447-48.) With the same frequency, he would call out, '[t]here she goes, there it is.' (J.A. 240.) Mullins would stick his tongue out at Walker and other female employees and 'snicker.' (J.A. 417-18.) Other times, he would grab his crotch and exclaim, 'oh, oh, oh' or say, 'I bet you could holler real loud, couldn't you.' (J.A. 559, 117.) After Walker began dating a co-worker, Ray Cassidy, in March 2011, Mullins also made comments to him within Walker's hearing about Walker performing oral sex. For example, one day when Walker went into a box to work, Mullins suggested to Cassidy that if he 'want[ed] a blow job' he should go join her."
Another male co-worker named Young made similar remarks on a weekly basis, and other female co-workers endured the same kinds of comments.
Walker reported this conduct on a regular basis to her "lead" worker (Sandra Burnopp), she was reportedly counselled to "just ignore it," and that Mullins "does that to everybody" and "always acts like that." Complaints to the next-level supervisor (named Craiger) did not abate the harassment.
On July 20, 2011, Mullins, Cassidy and Walker engaged in a workplace altercation, during which "numerous employees described [Walker] as 'poking' or 'punching' her fingers into Mullins' chest," and Cassidy held a hammer in a threatening manner. Cassidy and Walker were terminated within the week.
Walker brought a Title VII action for hostile work environment and retaliation. The district court granted summary judgment on the harassment claim, holding that the evidence of objectively severe or pervasive conduct was "insufficient, as a matter of law, to meet the high bar required to survive summary judgment...." It granted summary judgment on the retaliation claim on the ground that Walker did not establish that the avowed reason for her discharge (the July 20 fight) was pretextual.
The Fourth Circuit affirms the retaliation summary judgment, but reverses on the harassment claim. It holds that it is constrained to do so based on two principles: "First, at the summary judgment stage, we must view the record in the light most favorable to Walker, who was the non-moving party ... Second, 'whether 'harassment was sufficiently severe or pervasive is quintessentially a question of fact.''"
The panel holds that the record requires weighing by a jury:
"As recounted above, [the] alleged environment consisted of comments of varying degrees of offensiveness being made to Walker several times a week for well over a year. Similar comments were made with the same frequency to other coworkers ... When Walker or her co-workers complained to their leads and immediate supervisors, limited action was taken to stop the offending behavior."
While noting that the record was "some factors pull toward a finding that the offensive behavior was actionable, while other factors pull in the opposite direction," the panel observes that "factual details and credibility determinations are also not issues to be resolved at the summary judgment stage."
Notably, the panel observes that the absence of physical harassment, such as touching and groping, did not preclude a jury from finding the co-workers' behavior objectively harassing. "[A] reasonable jury could rationally find that the consistent and repeated comments made by Mullins and Young 'painted women in a sexually subservient and demeaning light [that is] sufficiently severe or pervasive to alter the conditions of [Walker's] employment and to create an abusive work environment.'" [Citation omitted.]