Post-Surgery Harassment Entitles Saleswoman to Trial

By Susanne Harris Carnell March 15, 2017
Post-Surgery Harassment Entitles Saleswoman to Trial

​A former Yankee Candle saleswoman subjected to vulgar sexual insults by a co-worker will have the opportunity to present her harassment and retaliation claims to a jury, ruled the U.S. District Court for the District of Massachusetts.

Brenda Zemrock worked part time at the Holyoke Mall candle store in Holyoke, Mass., from December 2009 until she resigned on June 28, 2012. During her last six months, she took a medical leave to undergo a hysterectomy and shortly thereafter took a second leave to undergo bladder surgery. After each surgery, the store accommodated her lifting restriction and permitted her to take unlimited bathroom breaks, frequently (but not always) scheduling her to work with someone else to avoid having to lock the store during those breaks.

[SHRM members-only toolkit: Accommodating Employees' Disabilities]

Matt Provost was one of those co-workers scheduled to work with Zemrock, and he was frequently lewd. Provost commented to her about his private parts, the private parts of other women working in the mall, his state of arousal and his contemplated sexual behavior. Although Zemrock complained to the store manager and assistant store manager and asked not to work with Provost, they did nothing except encourage her to keep her concerns "in the store."

After Zemrock's surgeries, Provost began making her the target of his graphic sexual commentary. For example, he opined—in obscene terms—about the purported sexual benefits of her surgically altered anatomy, once referring to her as an "unstuffed turkey." In response to her protests, the store managers—who had been laughing with Provost—told her she wasn't "fun to be around" anymore.

Shortly after this incident, Zemrock decided to resign. When Zemrock told a visiting district manager of her intention, the "very nice" manager repeatedly asked her to stay so she could try to resolve the issues, but Zemrock quit anyway.

Zemrock filed suit against Yankee Candle under the Americans with Disabilities Act and Massachusetts state law, alleging sex- and disability-based harassment and discrimination as well as retaliation. Granting Yankee Candle's summary judgment motion in part, the court concluded that Zemrock was "disabled" by virtue of her hysterectomy but rejected her failure to accommodate claim, ruling that Zemrock's subjective belief that locking the store was disfavored by her boss was not controlling. The court also held that Zemrock's resignation was "grossly premature" in light of the district manager's unambiguous offers to resolve the situation, dismissing her constructive discharge claim.

Yankee Candle did not fare as well on Zemrock's harassment and retaliation claims. Faced with evidence of Provost's frequent, graphic sexual comments focused on her disability and the store managers' participation, the court concluded that Zemrock easily met the severe and pervasive standard entitling her to a jury trial on her harassment claims. The court also ruled for Zemrock on her retaliation claim, holding that there was sufficient evidence from which a reasonable jury could find the continued harassment to be an adverse action. In addition, the store managers, who had predicted that "karma" would bite Zemrock "in the fanny" after her complaints, might have been motivated by retaliatory motives.

Zemrock v. Yankee Candle Co., D. Mass., No. 14-cv-30107-KAR (Feb. 7, 2017).

Professional Pointer: It's never too late to do the right thing. By trying to fix the situation immediately, the district manager may have cut off Zemrock's damages. But prevention would have been better. Requiring "up the chain" reporting of concerns and sending district managers out into the field more frequently could have nipped this situation in the bud before it became actionable.

Susanne Harris Carnell is an attorney with Lorenger & Carnell PLC, the Worklaw® Network member firm in Alexandria, Va.

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