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Mistreated Employee Fails to Prove Discrimination

By R. Mark Dare  2/10/2014

When a supervisor loudly cursed his employee and physically prevented her from leaving the room, the employer avoided liability for discrimination because the rude conduct was neither sexual nor severe, the 8th U.S. Circuit Court of Appeals held.

Loretta Rester, a reporter for the Hot Springs Village Voice in Hot Springs, Ark., became embroiled in a confrontation with the paper’s general manager, William Elderton, during a review of errors in a special publication that was about to be issued.

According to Rester, Elderton slammed his hands on a desk and began screaming and cursing at her. Rester attempted to leave the room three times, but each time, Elderton put his hands on her and made her stay until, finally, after she began “wailing and cussing and screaming and hollering,” he let her go. A few minutes later, Elderton apologized.

Rester reported the incident to the publisher and said she wanted to continue working at the Village Voice. The paper took no disciplinary action against Elderton. Three weeks after the incident, Rester resigned. The publisher attempted to persuade her to stay, noting that the offending manager would be retiring in one month. She nevertheless resigned, and later filed suit, claiming gender discrimination, hostile environment, constructive discharge and retaliation.

The trial court awarded summary judgment to the employer, and the 8th Circuit affirmed. Despite the unpleasant nature of the general manager’s conduct, the court held there was no evidence that it was sexual or gender-based.

Nor were the manager’s actions, though offensive, severe enough to meet the demanding “hostile environment” standard. The court also said there was no constructive discharge because the single incident did not make the workplace “intolerable” and the employer did not intend to force Rester to resign; in fact, the publisher had tried to persuade her to stay. Finally, the court held, the retaliation claim failed because there was no adverse employment action and because, again, the employer had attempted to dissuade the plaintiff from resigning.

Rester v. Stephens Media LLC, 8th Cir., No. 12-3934 (Jan. 13, 2014).

Professional Pointer: The publisher helped the newspaper’s case when he attempted to persuade Rester not to resign. This undermined both the constructive-discharge and retaliation claims. However, the employer never disciplined the offending supervisor. Imposing consequences on a misguided supervisor often helps assuage the aggrieved employee and may dull the individual's interest in pursuing a claim.

Mark Dare is an attorney at Isler Dare P.C., the Worklaw® Network member firm in Virginia.

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