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8th Circuit: Prompt Response Fends Off Hostile Work Environment Claim

By Kenneth J. Diamond   5/16/2008
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A former employee’s claims of sexual harassment and constructive discharge were properly dismissed where the employer took prompt and remedial action to address alleged harassment and encouraged the employee not to quit, the 8th U.S. Circuit Court of Appeals has held.

Debra Anda worked for Wickes Furniture Co. as a salesperson. In September 2003, another salesperson, Ryan Carlson, complained to the store manager that Anda stole one of his customers and called him a “leviathan.”

On Sept. 15, Wickes’ human resource department instructed the manager to issue a verbal reprimand to Anda. When the manager did so, Anda responded that Carlson had previously made inappropriate comments to her.

On Sept. 20, Anda provided the manager with a list of allegations, including that Carlson:

  • Asked another female salesperson and her whether they used a “strap on.”
  • Kicked her on the leg.
  • Referred to her as having a “large butt.”

The HR department instructed the manager to issue Carlson a verbal reprimand. The manager did and told Anda about the reprimand.

On Sept. 29, Carlson accused Anda of stealing a customer and said he would “kick [her] f---ing ass” if she did not turn the customer over to him. The next day, Anda told the manager that she would not return to work because of Carlson’s statements to her. The manager told Anda the company did not want to lose her, the investigation of Carlson was ongoing and “it was only a matter of time” before Carlson was disciplined.

Anda then complained about Carlson to an HR professional, who promised to investigate the matter. Shortly thereafter, Carlson was terminated. Nevertheless, Anda quit and filed a lawsuit, claiming there were additional acts of sexual harassment that she had not reported to anyone at Wickes.

The district court granted Wickes’ motion to dismiss before trial. The 8th Circuit affirmed. The court held that the alleged conduct was not severe and pervasive enough to establish a hostile work environment claim, and, regardless, Wickes took prompt and effective remedial action to address Anda’s concerns.

Anda also failed to prove that Wickes knew or should have known about the alleged sexually harassing acts she failed to report. Wickes had in place a code of business conduct and policy prohibiting harassment and requiring employees to report any incidents of harassment to management.

Finally, Anda’s constructive discharge claim failed because she provided no evidence that Wickes intended to force her to quit. To the contrary, her managers twice encouraged her to stay. Moreover, Anda did not provide the company with a reasonable opportunity to correct the intolerable working conditions she alleged.

Anda v. Wickes Furniture Co. , 8th Cir., No. 07-1427 (Feb. 19, 2008).

Professional Pointer: By encouraging the accuser to stay with the company, the employer can foreclose a potential constructive discharge claim if the employee nevertheless decides to quit.

Ken Diamond is a member of the firm Winterbauer & Diamond PLLC , a Worklaw® Network member firm in Seattle.

Editor’s Note: This article should not be construed as legal advice.
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