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A Michigan federal court ruled that a female auto mechanic could go to trial on her claims that her employer maintained a sexually hostile work environment. The U.S. District Court for the Eastern District of Michigan, in a pair of related decisions, decided first that evidence about sexual comments and horseplay in the workplace were relevant to the issue of the degree of sexually hostile behavior at work, even if the complaining employee had no knowledge of some of the behavior and comments. In a second decision, addressing the merits of the case, the court ruled that the standards for deciding whether a workplace is sexually hostile are the same regardless of the workplace setting.
Vera Schmidlin started working as a mechanic for Uncle Ed’s, an auto repair business, in March 2009. At that time, the HR employee who hired her, Cassie Bednarski, told Schmidlin about Uncle Ed’s sexual harassment policy but didn’t give her a copy because the company had run out. Bednarski didn’t review the policy with her, so Schmidlin didn’t know how it worked or whom to contact if she was sexually harassed.
Uncle Ed’s assigned Schmidlin to its Warren location, where she was subjected to conduct that made her feel "uncomfortable," including (1) Durrell, a coworker, pushing her out of the way and voicing opinions such as that women didn’t belong working on cars and that all females are bitches who belong at home pregnant and barefoot ; (2) Steve Smith, an assistant store manager asking her, her opinions of anal sex; (3) Dean Falloni, another coworker, reading dirty jokes off his phone in her presence; and (4) general degrading comments by male employees, for example, that they wanted to get laid and that women are sex objects and "nothing but bitches."
Schmidlin reported Durrell’s conduct to Bednarski, who told Durrell to stop. Another manager, Morrease Germany, tried to talk to Durrell about it, but an altercation ensued, in which Durrell pushed Germany. Durrell was terminated shortly thereafter, but it was not clear whether his termination stemmed from the fight with Germany or his behavior toward Schmidlin.
Schmidlin also reported Smith’s comments to management, apparently to no effect.
Management did transfer her to another location, however, in Shelby Township, but there, the incidents continued, until Schmidlin resigned in July 2009.
Two months after resigning, Schmidlin ran into Bednarski, who told Schmidlin that she and a female ex-employee had also been sexually harassed at Uncle Ed's. Bednarski also said that if asked, she would never admit that anybody was sexually harassed at Uncle Ed's because she did not want to risk losing her job.
Schmidlin sued Uncle Ed’s for a sexually hostile work environment, claiming that the company, through its management, negligently allowed its employees to harass her based on her gender, causing her to resign.
At the outset, Uncle Ed’s raised the threshold issue of the probative value of sexual workplace behavior that took place out of Schmidlin’s earshot or behind her back. The company asked the court to exclude that evidence, arguing that it some of it was irrelevant and some of it was hearsay.
Among the disputed evidence was deposition testimony from Germany, who said that Steve Smith, a former manager, told Germany that he wanted to have sexual intercourse with Schmidlin and that when Schmidlin was not looking, Smith would make sexual gestures towards her without her knowledge. Germany also said that certain technicians, without Schmidlin’s knowledge, would joke about their desire to have sexual intercourse with her without her knowledge. There was similar testimony from former assistant manager Gjon Micakaj, who said that he heard technicians making sexual comments about her. This evidence, Uncle Ed’s argued, should be excluded because it was irrelevant. The court decided that it was relevant to the issue of whether Uncle Ed’s knew or should have known about the behavior.
There was also testimony from Schmidlin herself, stating that two former Uncle Ed’s employees, Cassandra Bednarski and Jen Smith, told Schmidlin that they had been harassed at work, but never complained because they didn’t want to lose their jobs. Schmidlin also said that Jen Smith told her that Uncle Ed’s would never fire Dean Falloni because he was too good at his job. Schmidlin also said that Germany told her that Steve Smith was making sexual comments about her without her knowledge.
On the relevancy of this testimony the court ruled that it shed light on the employer’s knowledge even if some of the conduct described wasn’t directed at Schmidlin.
Uncle Ed’s next asked the court to dismiss the case at an early stage.
The court stated that to establish a viable claim of a sexually hostile work environment, Schmidlin had to show that (1) she was a member of a protected class; (2) she was subjected to unwelcome sexual harassment; (3) the harassment was based on sex; (4) the harassment unreasonably interfered with her work performance by creating a hostile, offensive, or intimidating work environment; and (5) the employer is liable for the behavior.
Uncle Ed’s argued that any harassment was not based on sex and not severe or pervasive enough to constitute a hostile work environment. It also argued about its knowledge of the behavior and failure to address it.
Addressing the first argument, the court said that to show that the harassment was based on sex, Schmidlin had to demonstrate that but for the fact of her sex, she would not have been the object of harassment. Applying that standard to Dean Falloni’s conduct, for example, Schmidlin said that she believed that he rubbed into her because of her sex and that she didn’t see him do the same to male employees. There was also no evidence showing that Falloni behaved that way with male employees, looking down shirts, staring in a sexual fashion, saying "Hi beautiful," or commenting on thongs or hair.
Uncle Ed’s argued that the Schmidlin’s co-workers’ behavior was at most "inappropriate" and not "of a sexual nature." But the court decided that conduct like that could still constitute harassment based on animus against women. “Comments such as ‘women don't belong working on cars,’” the court stated, “could show hostility toward the female gender.”
The conduct need not be overtly sexual in nature. “Any unequal treatment of an employee that would not occur but for the employee's gender may constitute a hostile environment,” the court stated. It decided that the behavior of Falloni and other employees appeared to be motivated by Schmidlin’s gender.
Having decided that the evidence satisfied the third part of the test, the court then turned to Uncle Ed’s argument that the behavior was not severe or pervasive enough to constitute a hostile work environment. On this point, the court stated that Schmidlin had to show that the challenged conduct in question was both (1) objectively severe enough to create an environment that a reasonable person would find hostile, and (2) that she subjectively viewed it as creating a hostile environment.
Here, the court said, Schmidlin had established that she subjectively regarded the workplace environment as abusive, and Uncle Ed’s did not challenge those statements. Therefore the debate on this point was whether the behavior was objectively hostile or abusive. The court stated that the conduct must be extreme, but added that the requisite level of "extreme" is not any higher in a male-dominated work environment such as Uncle Ed’s.
“Surely women working in the trades do not deserve less protection from the law than women working in, for example, a courthouse,” the court stated, adding that the determination of whether the conduct was extreme depended on its frequency and severity as well as whether it was physically threatening or humiliating (as opposed to a verbal statement) and unreasonably interfered with the employee's performance.
The court applied these criteria to numerous incidents involving Dean, Durrell, and Smith, pointing out that although Schmidlin recalled at least 15 types of alleged unwelcome conduct, the actual number of incidents was closer to 20 or 25 because some of the actions and comments were repeated. Moreover, the court added, of the seven types of alleged physical actions, three were batteries, and that the actual number of batteries was closer to ten because Schmidlin claimed that Dean rubbed into her more than five but fewer than 10 times. Finally, the court said, the fact that Dean committed the majority of the misconduct weighs against a finding that his behavior constituted offhand comments or isolated incidents.
The court also found that Schmidlin was physically threatened and decided that there was a legitimate issue of fact as to the extent to which the behavior altered her work performance.
The court turned next to the issue of whether Uncle Ed’s had notice that the behavior was taking place and failed to address it. On this point, the court stated that Uncle Ed’s would be liable only if it negligently failed to prevent harassment by controlling working conditions. The court looked for evidence of whether Uncle Ed’s monitored the workplace, responded to complaints, provided a reporting procedure, or effectively discouraged complaints from being filed.
Here, the court said, there was a question of fact as to whether Uncle Ed’s failed to address Schmidlin’s complaints. The company did have a complaint policy in place, and there was some evidence that managers responded effectively to complaints: For example, after Durrell allegedly pushed Schmidlin and insulted women at the Warren store, he was sent home early that day and terminated shortly after. On the other hand, there was some evidence that Uncle Ed’s managers failed to provide employees with copies of the employee handbook, which contained the complaint policy and the phone number for the corporate office. There was also some testimony that Durrell's termination was unrelated to Schmidlin’s complaint. Finally, there was some evidence that Bednarski would never have relayed Schmidlin’s complaints up the chain of command for fear of losing her managerial job.
“Therefore,” the court said, “there is clearly a question of fact as to whether [Uncle Ed’s] negligently failed to prevent known harassment. Accordingly, the court denied the motion to dismiss the sexual harassment claim.
Schmidlin v. Uncle Ed’s Oil Shoppes, Inc., E.D. Mich., Case No. 13-cv-1-552., (Nov. 10, 2014).
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