Julie Gallagher v. C. H. Robinson Worldwide, Inc. ( 2009 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0184p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
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JULIE GALLAGHER,
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Plaintiff-Appellant,
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No. 08-3337
v.
,
>
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Defendant-Appellee. -
C.H. ROBINSON WORLDWIDE, INC.,
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N
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 06-02443—Dan A. Polster, District Judge.
Argued: January 22, 2009
Decided and Filed: May 22, 2009
*
Before: GIBBONS and McKEAGUE, Circuit Judges; SHADUR, District Judge.
_________________
COUNSEL
ARGUED: Douglas L. Micko, SCHAEFER LAW FIRM, Minneapolis, Minnesota, for
Appellant. Bruce G. Hearey, OGLETREE, DEAKINS, NASH, SMOAK & STEWART,
Cleveland, Ohio, for Appellee. ON BRIEF: Douglas L. Micko, SCHAEFER LAW
FIRM, Minneapolis, Minnesota, Bruce B. Elfvin, ELFVIN & BESSER, Cleveland,
Ohio, for Appellant. Bruce G. Hearey, Sara E. Hutchins, OGLETREE, DEAKINS,
NASH, SMOAK & STEWART, Cleveland, Ohio, for Appellee.
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OPINION
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McKEAGUE, Circuit Judge. Plaintiff Julie Gallagher was employed by
defendant C.H. Robinson Worldwide, Inc., in Cleveland as a transportation specialist for
*
The Honorable Milton I. Shadur, United States District Judge for the Northern District of Illinois,
sitting by designation.
1
No. 08-3337 Gallagher v. C.H. Robinson Worldwide, Inc. Page 2
four months. Throughout this period, she complained to her immediate supervisor about
the crude and offensive language and conduct of her co-workers, but her complaints fell
on deaf ears. Disgusted, she resigned. Nearly four years later, she commenced this
action in the Northern District of Ohio, suing C.H. Robinson Worldwide for sexual
harassment (hostile work environment) under federal and state law. The district court
granted defendant’s motion for summary judgment, finding plaintiff failed to present
sufficient evidence to make out a prima facie case. On appeal, Gallagher argues that the
record evidence is sufficient to create genuine issues of material fact.
Reviewing the record in the light most favorable to Gallagher, we find the district
court’s assessment of the prima facie case elements to be flawed in several respects. We
find the record facts are sufficient to create genuine fact issues which preclude summary
judgment. We therefore reverse the district court’s ruling and remand the case for
further proceedings.
I. FACTUAL BACKGROUND1
In August 2002, Plaintiff Julie Gallagher, who had worked for
two years as a sales representative for a transportation logistics company
in Michigan called Con-Way Truckload Services (“Con-Way”), was
looking for a similar position in Cleveland, Ohio. She initially looked
into transferring into another position within Con-Way in Cleveland, but
no such position was available. She was told, however, that Con-Way
was going to create an outside sales force within the next five years.
Meanwhile, Gallagher discovered that there was a sales opening at
another transportation logistics company in Cleveland, Defendant CHR,
thought it was a good fit and commenced employment there on
September 3, 2002.
At that time, the Cleveland office of CHR employed
approximately 20 sales employees and 3 support personnel. Sales
employees’ job duties included booking freight loads, ensuring the timely
and safe arrival of loads and negotiating rates. In order to carry out those
duties, the sales staff worked in cubicles (work stations) that were
organized in pods in an open floor plan. Short dividers separated them so
1
The district court’s opinion includes a fair summary of the factual background. It is here
reproduced in its entirety. Memorandum of Opinion and Order pp. 1-7, JA 21-27; Gallagher v. C.H.
Robinson Worldwide, Inc., 2008 WL 471693 at *1-3 (N.D. Ohio Feb. 19, 2008) (citations to record and
footnotes omitted).
No. 08-3337 Gallagher v. C.H. Robinson Worldwide, Inc. Page 3
they could freely communicate with one another while conducting
business. The sales staff used telephones and computers [to] facilitate
their transactions, and had access to the Internet to conduct their
business. The short divider walls between cubicles provided little
privacy; co-workers’ computers were fairly visible to each other,
conversations between employees as well [as] phone conversations with
customers were readily overheard. The environment at the Company was
noisy, the job was high pressured and fast paced.
It is into this environment that Gallagher entered in September
2002. Gallagher began her employment as a transportation sales
representative on a dubious note. She was interviewed by, among other
potential co-workers and the branch manager, another transportation
sales representative named Bryan Starosto who made it clear that he did
not want to interview her. Despite this unpleasant interview, however,
CHR offered her a sales position and she accepted it. She maintained this
position until four months later, when she left CHR to become part of
Con-Way’s newly created outside sales force in Cleveland at a higher
salary.
Gallagher describes the atmosphere at the Cleveland office of
CHR during her four-month tenure as being much like “a guys’ locker
room” characterized by unprofessional behavior on the part of both males
and females, and an environment that was hostile to women. She
testified to the prevalent use of foul language by mostly male coworkers
who openly and loudly referred to female customers, truck drivers, co-
workers and others as bitches, whores, sluts, dykes and cunts. She
testified that male and female co-workers viewed sexually explicit
pictures on their computers (although the only incident she could
specifically recall was a sexually explicit picture on co-worker Angela
Sarris’ computer during the Christmas holidays), and that male co-
workers left pornographic magazines lying open on their desks.
Gallagher testified that, on several occasions, Starosto brought in nude
pictures of his girlfriend in different sexual poses and shared those
pictures with several of his male co-workers who occasionally brought
in, and shared, pictures of their own with him. She testified that her male
co-workers traded sexual jokes and engaged in graphic discussions about
their sexual liaisons, fantasies and preferences in her presence on a daily
basis. Gallagher also testified that some of the employees drank beer in
the office in the afternoon on Fridays, that some male co-workers came
in to the office on Saturdays (when branch manager Greg Quast was not
there) without a shirt on, that one woman planned her entire wedding at
the office, and that another planned her baby shower at the office.
When Gallagher was asked at deposition to testify to instances of
sexually offensive conduct directed at her, she testified that Starosto
No. 08-3337 Gallagher v. C.H. Robinson Worldwide, Inc. Page 4
called her a “bitch” in anger on several occasions, usually in response to
her request to male co-workers to keep their sex jokes to a minimum or
to put away their pornography. Gallagher also testified that, on one
occasion, several male co-workers near her desk joked that “by hiring
[Gallagher, CHR] covered two quotas; the girl quota and the fat quota.”
Gallagher alleges that Starosto made several derogatory comments about
her weight, and [Warren] Liehr once referred to Gallagher as a “heifer”
with “milking udders,” and “moo”ed when she walked by his desk.
Gallagher testified that on one Saturday when she was scheduled to
work, three male co-workers came into the office following a session at
a gym in the building next door. Co-worker David Derryberry, who was
wearing only a towel and announced that he was “commando” (meaning
that he was wearing no underwear) sat on Starosto’s desk, displaying his
whole thigh, and talked with the others about anal sex, their enjoyment
of it and how Starosto’s girlfriend objected to it. On the next business
day, Gallagher complained to Quast about this incident and told him she
did not want to work on Saturdays anymore.
When asked if anyone had any objectionable physical contact
with her, Gallagher testified that, in the second month she worked at
CHR, Liehr put his chair in the aisle to block her way. Although he
moved his chair when she asked him, she apparently walked into him
inadvertently when she passed by. Gallagher described this as primarily
a hostile encounter, but believed that it had sexual connotations since it
involved unwanted contact; still, she never reported the incident to
anyone. Gallagher also testified that, on two or three occasions, Starosto
would put his legs in the aisle when he would see her get up from her
seat to go to the printer. When she asked him to move his legs, he would
do so after waiting a moment. She believed that this behavior was both
“sexual and hostile” but does not recall reporting the incidents to Quast.
CHR has policies prohibiting discrimination and harassment on
the basis of gender, and prohibiting the electronic dissemination of
sexually explicit materials through e-mail or the Internet. Gallagher
received copies of these policies on her first day of work. The sexual
harassment policy requires employees to report complaints of sexual
harassment to the legal department, the branch resources manager, or the
branch manager. It provides names and phone numbers for the legal
department and the branch resources manager. Although Gallagher
signed an acknowledgment stating that she read the policy and agreed to
comply with its terms, she testified at deposition that she did not recall
reading it before signing it, that she did not keep a copy of it and that she
could not recall asking anyone for a copy. The sexual harassment and e-
mail and Internet policies are also available on the company’s internal
website, along with an anonymous third-party toll-free hotline and an
No. 08-3337 Gallagher v. C.H. Robinson Worldwide, Inc. Page 5
anonymous e-mail service for reporting incidents of discrimination or
inappropriate behavior.
Additionally, CHR employees are required to sign certificates
stating that they have complied with CHR’s policies during the preceding
year – and that if they have any questions about those policies, to contact
the Compliance Officer before signing the certificate. Although
Gallagher testifies that the sexually offensive conduct occurred from the
beginning of her employment, she signed a compliance certificate on
November 25, 2002, but never contacted the Compliance Officer
regarding offensive conduct.
Rather, Gallagher testified that she complained frequently to
Quast about the unprofessional and sexually offensive workplace conduct
to little or no avail. Although Quast had his own office, he seldom used
it; and he usually required Gallagher to voice her complaints to him at his
work station. Often, he would simply yell at the offending employee to
stop the conduct because it was bothering Gallagher which, she says,
subjected her only to more ridicule. Although Gallagher was aware of
the anonymous 800 tip line, she refused to use it because some co-
workers and Quast referred to the number as “the waw-waw line” and
one co-worker told her not to call the line because the last person who
did, lost her job.
In early December 2002, three months after Gallagher
commenced her employment at CHR, the Vice President of Con-Way
(Don Fegtley) called Gallagher at her home to inquire whether she was
happy at CHR and to inform her that Con-Way might be moving forward
with an outside sales position in Cleveland. Shortly thereafter, Fegtley
called Gallagher back and confirmed an opening, she confirmed her
interest in it and, in a letter dated December 13, 2002, Con-Way formally
offered her the position contingent upon submission of an application and
a background check.
Gallagher claims, however, that she only decided to quit her job
at CHR on January 3, 2003. This was the day of the National
Championship football game between Ohio State University and the
Miami Hurricanes. She testified that a female co-worker brought Jello
shots into the office that day and that, in the early afternoon, many co-
workers stopped working and started drinking. When Gallagher left, she
discovered that she had a flat tire, went back into the office and asked for
help changing it. Several drunk male co-workers laughed at her and when
they left the building, they got into their trucks and “flipped her off”
when passing her by. However, a male and female co-worker eventually
assisted her. Although Gallagher claims this incident is the one that
motivated her to quit her job at CHR, she did not actually quit until
No. 08-3337 Gallagher v. C.H. Robinson Worldwide, Inc. Page 6
January 8, 2003 and began working for her previous employer, Con-
Way, on January 13, 2003.
II. PROCEDURAL BACKGROUND
On October 10, 2006, Gallagher commenced this action, asserting claims against
C.H. Robinson for maintaining a sexually hostile work environment, advanced under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (Count I), and under Ohio
Revised Code § 4112.99 (Count III); for failing to provide a safe work environment free
from sexual harassment, per Kerans v. Porter Paint Co., 575 N.E.2d 428 (Ohio 1991)
(Count IV); and for failing to allow her to compete for, and promote her to, a better
position within the company (Count II). After completion of discovery, defendant
moved for summary judgment on all claims. In response, Gallagher voluntarily
dismissed the Count II failure-to-promote claim, but she otherwise opposed the motion.
The district court issued its ruling on February 19, 2008, granting the motion for
summary judgment. Concluding that all three sexual harassment claims were governed
by the same standards, the court determined that the evidence failed to satisfy three
required elements of a hostile work environment claim. First, the evidence was deemed
insufficient to support a finding that the harassment Gallagher experienced was based
on her sex. The court found that most of the offensive language and conduct was
“indiscriminate;” i.e., was not directed at plaintiff, and was not shown to have occurred
because Gallagher is a woman. Second, the harassing conduct, albeit subjectively
offensive to Gallagher, was deemed not to be so objectively severe and pervasive as to
have unreasonably interfered with her work performance. Third, the court concluded
that C.H. Robinson could not be held liable for offensive conduct engaged in by its
employees because Gallagher failed to take advantage of several available avenues for
reporting the conduct to upper management, but instead reported it only to her
immediate supervisor, who she acknowledged could not handle the situation. On appeal,
Gallagher challenges all of these conclusions, contending the district court wrongly
construed facts in the company’s favor, gave significant weight to irrelevant facts, and
erred in its legal analysis and conclusions. We agree.
No. 08-3337 Gallagher v. C.H. Robinson Worldwide, Inc. Page 7
III. ANALYSIS
A. Standard of Review
We review de novo an order granting summary judgment. White v. Baxter
Healthcare Corp., 533 F.3d 381, 389 (6th Cir. 2008). Summary judgment “should be
rendered if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the movant
is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). We must view the
evidence in the light most favorable to the non-moving party and draw all reasonable
inferences in its favor. White, 533 F.3d at 390. Not just any alleged factual dispute
between the parties will defeat an otherwise properly supported motion for summary
judgment; the dispute must present a genuine issue of material fact. Id. A dispute is
“genuine” only if based on evidence upon which a reasonable jury could return a verdict
in favor of the non-moving party. Niemi v. NHK Spring Co., Ltd., 543 F.3d 294, 298
(6th Cir. 2008). A factual dispute concerns a “material” fact only if its resolution might
affect the outcome of the suit under the governing substantive law. Id. at 298-99.
As to the governing substantive law, the district court correctly recognized that
sexual harassment claims under Ohio Revised Code § 4112 are generally governed by
the same standards as sexual harassment claims under Title VII, citing Hampel v. Food
Ingredients Specialties, Inc., 729 N.E.2d 726, 731 (Ohio 2000); Greenwood v. Delphi
Auto. Sys., 103 F. App’x 609, 612 n. 1 (6th Cir. 2004). See also Singfield v. Akron
Metro. Housing Auth., 389 F.3d 555, 561 (6th Cir. 2004). Accordingly, like the district
court and the parties, we analyze Gallagher’s hostile work environment claims
collectively under federal law standards.
To establish a prima facie case of sexual harassment based on hostile work
environment, Gallagher must adduce evidence demonstrating that “(1) she is a member
of a protected class (female); (2) she was subjected to harassment, either through words
or actions, based on sex; (3) the harassment had the effect of unreasonably interfering
with her work performance and creating an objectively intimidating, hostile, or offensive
No. 08-3337 Gallagher v. C.H. Robinson Worldwide, Inc. Page 8
work environment; and (4) there exists some basis for liability on the part of the
employer.” Grace v. USCAR, 521 F.3d 655, 678 (6th Cir. 2008). The district court
found the evidence wanting on elements (2) through (4).
B. Harassment “Based on Sex”
The district court was persuaded by C.H. Robinson’s argument that most of the
complained of offensive conduct in its Cleveland office was common and indiscriminate,
was not targeted at Gallagher, would have taken place whether Gallagher was present
or not, and therefore was not “based on” Gallagher’s femaleness. This conclusion
reflects a mistaken perception of what is required to find that conduct is “based on sex”
in the legal sense.
There were instances in the workplace when Gallagher was repeatedly called a
“bitch” by a co-worker in anger, was referred to by another as a “heifer” with “milking
udders,” and was taunted by a male co-worker wearing nothing but a towel around his
waist when she was the only female in the office. These incidents, in which offensive
conduct was directed at Gallagher, reflect sex-discriminatory animus. Yet, the record
suggests that much of the other highly offensive conduct was not directed at Gallagher.
Among the commonplace offensive occurrences, Gallagher complained of: co-workers’
vulgar descriptions of female customers, associates and even friends as “bitches,”
“whores,” “sluts,” “dykes,” and “cunts;” co-workers’ joint ogling and discussions of
obscene photographs and pornographic magazines; and co-workers’ explicit
conversations about their own sexual practices and strip club exploits. Gallagher could
not avoid exposure to these offensive behaviors because they occurred in close proximity
to her work station, where she was required to be. Still, the offensive conduct does not
appear to have been motivated by Gallagher’s presence or by the fact that she is a
woman.
The district court cited Williams v. General Motors Corp., 187 F.3d 553, 565 (6th
Cir. 1999), for the proposition that the “based on sex” element makes it incumbent on
Gallagher to show that the offensive conduct “occurred because she is a woman.” The
court concluded that because much of the offensive conduct Gallagher complained of
No. 08-3337 Gallagher v. C.H. Robinson Worldwide, Inc. Page 9
occurred in an open forum where men and women worked together, it did not occur
because she is a woman and was therefore not based on sex. Quoting Baldwin v. Blue
Cross/Blue Shield of Ala., 480 F.3d 1287, 1301 (11th Cir. 2007), the court observed that
“[i]t would be paradoxical to permit a plaintiff to prevail on a claim of discrimination
based on indiscriminate conduct.”
The district court’s reliance on Williams is misplaced. In Williams, the court was
addressing a different question, i.e., whether harassing conduct that is not sexually
explicit may nonetheless satisfy the “based on sex” requirement. The court answered
the question in the affirmative, as long as the non-sexual conduct evinces anti-female
animus. Williams, 187 F.3d at 565. In other words, even non-sexual harassing conduct
may be deemed to be based on sex if the plaintiff is otherwise able to show that, but for
the fact of her sex, she would not have been the object of the harassment. Id.
Here, in contrast, most of the complained of harassment just summarized—both
conduct directed at Gallagher and indiscriminate conduct—is explicitly sexual and
patently degrading of women. The natural effect of exposure to such offensive conduct
is embarrassment, humiliation and degradation, irrespective of the harasser’s
motivation—especially and all the more so if the captive recipient of the harassment is
a woman. In connection with such evidence, it is hardly necessary for Gallagher to
otherwise show that the conduct evinces anti-female animus; it is obvious. Hence, even
though members of both sexes were exposed to the offensive conduct in the Cleveland
office, considering the nature of the patently degrading and anti-female nature of the
harassment, it stands to reason that women would suffer, as a result of the exposure,
greater disadvantage in the terms and conditions of their employment than men. See
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (observing that the
critical issue, for purposes of Title VII sexual harassment, is whether members of one
sex are subject to more disadvantageous terms or conditions of employment than
members of the other sex).2
2
Granted, some women, like Gallagher’s co-worker Angela Sarris, may be so calloused as to not
be any more offended than some men by the explicitly sexual and blatantly anti-female conduct that
permeated the Cleveland office. It appears Sarris was willing and able to participate in the offensive
No. 08-3337 Gallagher v. C.H. Robinson Worldwide, Inc. Page 10
The district court, in evaluating the “based on sex” element, focused too narrowly
on the motivation for the harassers’ offensive conduct rather than on the effects of the
conduct on the victim-recipient. This very point was recently clarified by the Eleventh
Circuit in Reeves v. C.H. Robinson Worldwide, Inc., 525 F.3d 1139 (11th Cir. 2008),
involving a disturbingly similar sexual harassment claim by a female employee in C.H.
Robinson’s Birmingham, Alabama office. The Reeves court reversed the lower court’s
grant of summary judgment to C.H. Robinson, holding that “sex specific” language
satisfies the “based on sex” element even when the language does not target the plaintiff.
Id. at 1144. The court reasoned:
The language in the CHRW office included the “sex specific” words
“bitch,” “whore,” and “cunt” that . . . may be more degrading to women
than men. The subject matter of the conversations and jokes that
allegedly permeated the office on a daily basis included male and female
sexual anatomy, masturbation, and female pornography, all of which was
discussed in a manner that was similarly more degrading to women than
men. . . . Therefore, even if such language was used indiscriminately in
the office such that men and women were equally exposed to the
language, the language had a discriminatory effect on Reeves because of
its degrading nature.
Id. This analysis is persuasive and equally applicable to the facts of this case. See also
Petrosino v. Bell Atlantic, 385 F.3d 210, 221-23 (2d Cir. 2004) (concluding that even
though both male and female employees were exposed to the same offensive
circumstances, a reasonable person, regardless of gender, would consider the sexually
offensive comments and graffiti more offensive to women than to men and therefore
discriminatory based on sex).
In defense of the district court’s ruling on this point, C.H. Robinson points to
language in Baldwin, 480 F.3d at 1302, to the effect that an “equal opportunity curser”
does not harass based on sex if members of one sex are not exposed to more
disadvantageous conditions of employment than members of the other sex. Yet, the
conduct on equal terms with the male co-workers. Gallagher testified that one of the more offensive and
degrading images she observed was displayed on Sarris’s computer monitor. When Gallagher objected,
Sarris and the others just laughed and ignored her. Apart from whether Angela Sarris is a reasonable
person, we do not hesitate to hold that a reasonable jury could conclude, based on the existing record, that
Gallagher experienced sex-based harassment in the workplace.
No. 08-3337 Gallagher v. C.H. Robinson Worldwide, Inc. Page 11
Baldwin court also expressly recognized that “sex specific” profanity is more degrading
to women than men and is properly deemed “based on sex” for purposes of evaluating
the severity and pervasiveness of the harassment. In other words, per Baldwin, too, a
harasser whose offensive conduct afflicts both men and women is not an “equal
opportunity curser” if the conduct is more offensive to women than men. Baldwin is
thus revealed to be entirely consistent with Reeves.
Accordingly, we adopt the approach employed in Reeves and Petrosino and hold
that the district court erred in finding the record evidence insufficient to present a triable
fact issue on the “based on sex” element of the prima facie case.
C. Severe and Pervasive
The district court also determined that the harassment was not shown to be so
severe and pervasive as to interfere with Gallagher’s job performance. Although the
court found the evidence sufficient to create a genuine issue of fact as to whether the
alleged workplace conduct was subjectively severe or pervasive to her, the court
determined Gallagher could not show that it was “sufficiently objectively severe or
pervasive” to withstand the motion for summary judgment. The court acknowledged its
obligation to consider the totality of the circumstances, but summarized these merely as
entailing “the frequent use of crude language, the occasional instances of offensive e-
mails and pornographic material to which Gallagher was not intentionally exposed, and
the few instances of offensive conduct directed at Gallagher.” Further, the court faulted
plaintiff for failing to present any evidence that the harassment interfered with her work
performance. In these conclusions, the district court has made the same mistakes in
evaluating the evidence as were made by the district court in Williams v. General
Motors.
No. 08-3337 Gallagher v. C.H. Robinson Worldwide, Inc. Page 12
In Williams, the court identified the governing standard as follows:
Conduct that is not severe or pervasive enough to create an objectively
hostile or abusive work environment—an environment that a reasonable
person would find hostile or abusive—is beyond Title VII’s purview.
Likewise, if the victim does not subjectively perceive the environment
to be abusive, the conduct has not actually altered the conditions of the
victim’s employment, and there is no Title VII violation.
187 F.3d at 566 (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993)).
The Williams court went on to characterize this standard as meaning that “the focus of
the objective/subjective inquiry should remain on (1) whether a reasonable person would
find the environment objectively hostile, and (2) whether the plaintiff subjectively found
the conduct ‘severe or pervasive.’” Id. at 568. Further, the court emphasized that this
evaluation of the work environment must take into account the totality of the
circumstances. Id. at 563. “[E]ven where individual instances of sexual harassment do
not on their own create a hostile environment, the accumulated effect of such incidents
may result in a Title VII violation.” Id. The Williams court reversed the award of
summary judgment to the employer, holding the district court erred (1) by failing to view
the workplace as a whole, (2) by placing too much weight on the fact that Williams was
not physically threatened, and (3) by improperly insisting on evidence that Williams’s
work performance actually declined, as opposed to evidence that the harassment made
it more difficult for her to do the job.
This summary of Williams illustrates the flaws in the district court’s analysis in
this case. The district court emphasized that most of the offensive conduct was not
directed at Gallagher. This is not an irrelevant consideration, but the district court
appears to have ignored the fact that, due to the configuration of the Cleveland
workplace, it was practically impossible for Gallagher to avoid her co-workers’
offensive conduct. Whether the offensive conduct was intentionally directed specifically
at Gallagher or not, the fact remains that she had no means of escaping her co-workers’
loud insulting language and degrading conversations; she was unavoidably exposed to
it. Her complaints to co-workers and her supervisor were not only ignored, but actually
tended to exacerbate the harassment.
No. 08-3337 Gallagher v. C.H. Robinson Worldwide, Inc. Page 13
Further, the district court erroneously insisted on a showing that the harassment
was both subjectively and objectively severe and pervasive; whereas the Williams
standard requires a showing that the environment is objectively hostile and the
harassment subjectively severe and pervasive. The district court had no trouble
concluding there was a triable issue as to whether the harassment was subjectively
severe and pervasive. The next question thus should have been whether a reasonable
person could have found the environment objectively hostile. Considering the totality
of the circumstances as described in Gallagher’s deposition, the conclusion is
inescapable that a reasonable person could have found the Cleveland office—permeated
with vulgar language, demeaning conversations and images, and palpable anti-female
animus—objectively hostile. The district court reached a contrary conclusion by
erroneously limiting its consideration only to some instances of abusive conduct, instead
of considering the workplace as a whole.
Moreover, the district court also erred in requiring evidence that Gallagher’s
work performance suffered measurably as a result of the harassment. The court placed
inordinate weight on Gallagher’s testimony that she was able to meet her daily and
weekly quotas and that her work performance was rated average to above average. In
finding that Gallagher failed to present any evidence that the harassment unreasonably
interfered with her work, the court ignored her testimony that, from day one in the
Cleveland office, she was “horrified” by the loudness, constant swearing and vulgar
language, and that she “left there every day crying.” Considering Gallagher’s
description of the offensive conduct to which she was exposed, her reaction can hardly
be dismissed as implausible, unreasonable, exaggerated or hypersensitive. Nor is it
improbable that the hostility and antagonism she experienced rendered her work more
difficult. In Williams, the court made it clear that a plaintiff need not prove a tangible
decline in her work productivity; only “that the harassment made it more difficult to do
the job.” 187 F.3d at 567 (quoting Davis v. Monsanto Chem. Co., 858 F.2d 345, 349
(6th Cir. 1988)). Based on the instant record, a reasonable jury could certainly find that
the complained of harassment made it more difficult for Gallagher to do her job.
No. 08-3337 Gallagher v. C.H. Robinson Worldwide, Inc. Page 14
We therefore conclude that the district court erred in its determination that
Gallagher presented insufficient evidence that she was subjected to such severe and
pervasive harassment as to unreasonably interfere with her work performance and create
a hostile work environment.
D. Employer Liability
Finally, the district court concluded C.H. Robinson could not be held liable for
the workplace harassment because Gallagher did not make reasonable efforts to report
it to management for corrective action. The standards governing this element of the
prima facie case are well-summarized in Petrosino v. Bell Atlantic as follows:
The Supreme Court has ruled that employers are not
automatically liable for sexual harassment perpetrated by their
employees. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct.
2257, 141 L. Ed. 2d 633 (1998); Faragher v. City of Boca Raton, 524 U.S.
775, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998). Where an employee is the
victim of sexual harassment, including harassment in the form of a
hostile work environment, by non-supervisory co-workers, an employer’s
vicarious liability depends on the plaintiff showing that the employer
knew (or reasonably should have known) about the harassment but failed
to take appropriate remedial action. See Faragher v. City of Boca Raton,
524 U.S. at 789; accord Whidbee v. Garzarelli Food Specialties, Inc.,
223 F.3d 62, 72 (2d Cir.2000). Where the harassment is attributed to a
supervisor with immediate or successively higher authority over the
employee, a court looks first to whether the supervisor's behavior
“culminate[d] in a tangible employment action” against the employee,
Burlington Indus., Inc. v. Ellerth, 524 U.S. at 765, 118 S. Ct. 2257; if it
did, “the employer will, ipso facto, be vicariously liable,” Mack v. Otis
Elevator Co., 326 F.3d [116] at 124 [(2d Cir. 2003)]. In the absence of
such tangible action, an employer will still be liable for a hostile work
environment created by its supervisors unless it successfully establishes
as an affirmative defense that (a) it “exercised reasonable care to prevent
and correct promptly any sexually harassing behavior,” and (b) “the
plaintiff employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or to
avoid harm otherwise.” Burlington Indus., Inc. v. Ellerth, 524 U.S. at
765, 118 S. Ct. 2257; accord Faragher v. City of Boca Raton, 524 U.S.
at 807, 118 S. Ct. 2275; Mack v. Otis Elevator Co., 326 F.3d at 125.
No. 08-3337 Gallagher v. C.H. Robinson Worldwide, Inc. Page 15
385 F.3d at 225. See also Jackson v. Quanex Corp., 191 F.3d 647, 659 (6th Cir. 1999)
(same).
Evaluating C.H. Robinson’s liability for the offensive environment in the
Cleveland office thus depends fundamentally on whether Gallagher’s hostile work
environment claims are based on co-worker harassment or supervisor harassment.
Gallagher insists the answer is “both,” and the record supports her position. Although
it was Gallagher’s co-workers (Bryan Starosto, Warren Liehr, David Derryberry and
Brandon Rodgers) who were the perpetrators of some of the most offensive conduct, her
deposition testimony demonstrates that her supervisor, branch manager Greg Quast, was
present during and witnessed much of the conduct, participated in some of it, received
reports from Gallagher of incidents he did not witness, and through his inaction during
the four-month period, ostensibly condoned it all. In other words, both co-workers and
supervisor were clearly complicit in creating and maintaining the hostile work
environment. This is significant. Yet, the district court’s analysis of employer liability
appears to have been based on the implicit assumption that the case involved only
supervisor harassment.
If this case were strictly about supervisor harassment, the district court’s analysis
would arguably be correct. Applying the law summarized above in Petrosino, it is
apparent that Quast’s participation in the harassment did not ripen into any tangible
employment action against Gallagher, such as firing or demotion. Hence, C.H. Robinson
is entitled to assert its affirmative defense, consisting of the dual showing (1) that it
exercised reasonable care to prevent and correct harassing behavior and (2) that
Gallagher unreasonably failed to take advantage of available opportunities to avoid
harm. Generally, an employer satisfies the first part of this two-part standard when it has
promulgated and enforced a sexual harassment policy. Thornton v. Federal Express
Corp., 530 F.3d 451, 456 (6th Cir. 2008). “[A]n effective harassment policy should at
least: (1) require supervisors to report incidents of sexual harassment; (2) permit both
informal and formal complaints of harassment to be made; (3) provide a mechanism for
bypassing a harassing supervisor when making a complaint; and (4) provide for training
No. 08-3337 Gallagher v. C.H. Robinson Worldwide, Inc. Page 16
regarding the policy.” Id. (quoting Clark v. United Parcel Service, Inc., 400 F.3d at 341,
349-50 (6th Cir. 2005)).
Gallagher does not challenge the facial adequacy of C.H. Robinson’s sexual
harassment policy, but maintains she reasonably tried to take advantage of it by reporting
her complaints to her office manager, Greg Quast. She contends the lack of resulting
corrective action demonstrates the ineffectiveness of the policy. The district court gave
short shrift to this argument, noting that of the many means and opportunities available
to Gallagher, she employed only one. Limiting her reports of harassment to Quast alone
was clearly unreasonable, the district court found, because it had become clear to
Gallagher in her first weeks on the job that Quast was part of the problem, not the
solution.
Indeed, the policy expressly provides alternative avenues for reporting
harassment where an employee’s supervisor is involved in the harassment. Yet, despite
her knowledge of the alternatives, Gallagher did not report her concerns to any other
person in management. As the district court put it, “she chose, instead, to deal with the
problem by leaving the company for another, higher-paying job with her previous
employer.” Opinion at p. 14, JA 34; Gallagher, 2008 WL 471693 at *7. Gallagher’s
decision to leave her employment with C.H. Robinson appears clearly to have been
reasonable. However, her failure to take reasonable steps to ensure her employer was
actually aware of the harassment and had a chance to correct it before she left undercuts
her present effort to impose liability on C.H. Robinson based on Quast’s supervisory
complicity in the harassment. See Thornton, 530 F.3d at 457-58 (employer’s affirmative
defense deemed established on showing of effective harassment policy and showing of
employee’s unreasonable failure to take advantage of policy); Deters v. Rock-Tenn Co.,
245 F. App’x 516, 526-27 (6th Cir. 2007) (same).
Gallagher contends she refrained from using one of the alternative reporting
mechanisms, the 1-800 anonymous tip reporting number, for fear of repercussions. She
had heard that other employees who used it to register complaints had been fired. Yet,
the record is devoid of substantiation of this hearsay. Gallagher has not adduced
No. 08-3337 Gallagher v. C.H. Robinson Worldwide, Inc. Page 17
evidence that she was under a “credible threat of retaliation.” See Thornton, 530 F.3d
at 457 (quoting Walton v. Johnson & Johnson Servs., Inc., 347 F.3d 1272, 1290-91 (11th
Cir. 2003)). And “an employee’s subjective fears of confrontation, unpleasantness or
retaliation do not alleviate the employee’s duty under Ellerth to alert the employer to the
allegedly hostile environment.” Id. (quoting Williams v. Missouri Dep’t of Mental
Health, 407 F.3d 972, 977 (8th Cir. 2005)).
For these reasons, Gallagher’s claims would be vulnerable to summary judgment
if they were based strictly on supervisor harassment by Quast. However, her claims are
undisputedly also based on co-worker harassment. An employer is vicariously liable for
co-worker harassment of which it knew or should have known if it failed to take
appropriate remedial action, i.e., if its response manifests indifference or
unreasonableness. Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 338 (6th Cir. 2008);
McCombs v. Meijer, Inc., 395 F.3d 346, 353 (6th Cir. 2005). To establish that the
employer “knew or should have known” of the co-worker harassment, the plaintiff need
not necessarily have reported it to a supervisor. Jackson v. Quanex Corp., 191 F.3d at
663. Where harassment is pervasive, knowledge may be imputed to the employer. Id.
Here, it is undisputed that Gallagher reported much of the harassing conduct to
her supervisor Quast. Further, according to Gallagher’s deposition testimony, Quast
witnessed much of the harassing conduct and participated in some. The facts
substantiate a finding the Quast knew or should have known of the offensive conduct and
of Gallagher’s objection to it. Yet, in the absence of evidence that this knowledge
extended higher up in the chain of management, the question is whether Quast’s
knowledge is properly imputed to C.H. Robinson. As explained above, Quast’s
knowledge alone is insufficient to warrant imposing liability on C.H. Robinson for
supervisor harassment, but liability for co-worker harassment is different.
An employer is deemed to have notice of harassment reported to any supervisor
or department head who has been authorized—or is reasonably believed by a
complaining employee to have been authorized—to receive and respond to or forward
such complaints to management. Bombaci v. Journal Community Pub. Group. Inc., 482
No. 08-3337 Gallagher v. C.H. Robinson Worldwide, Inc. Page 18
F.3d 979, 984 (7th Cir. 2007). Under C.H. Robinson’s sexual harassment policy, Quast,
as branch manager and Gallagher’s immediate supervisor, was expressly so authorized.
Hence, C.H. Robinson has not disputed the claim that Quast’s knowledge of Gallagher’s
complaints is properly imputed to it.
Rather, C.H. Robinson argues that Gallagher’s complaints to Quast were
insufficient to communicate notice of sexual harassment. It is true that Gallagher did not
report all of her concerns to Quast and did not necessarily characterize all of her
complaints as sexual harassment complaints. Still, when the conduct Gallagher did
report to Quast is considered alongside the pervasive conduct Quast himself witnessed,
it can hardly be denied that there is a genuine fact issue as to what Quast, and therefore
C.H. Robinson, knew or should have known. See Hawkins, 517 F.3d at 339 (finding
question of fact regarding employer’s notice notwithstanding employee’s failure to
specifically report harassment); Jackson, 191 F.3d at 663 (recognizing that knowledge
of pervasive harassment may be imputed to employer despite lack of report).
C.H. Robinson maintains that even if it knew or should have known of the
harassment, Quast’s response to Gallagher’s expressed concerns was reasonable. In this
regard, Gallagher’s and Quast’s disparate versions about what transpired in the
workplace present classic questions of fact that preclude summary judgment. Because
a reasonable jury could find that C.H. Robinson knew or should have known of the
sexual harassment Gallagher experienced and yet responded with manifest indifference
or unreasonably, the district court’s conclusion that the premises for employer liability
are lacking is erroneous.
We thus conclude that the district court’s analysis of the prima facie case
elements of Gallagher’s hostile work environment claims is flawed in three respects. For
the reasons given above, the award of summary judgment to C.H. Robinson on the Title
VII (Count I) and Ohio statutory (Count III) hostile work environment claims must be
set aside.
No. 08-3337 Gallagher v. C.H. Robinson Worldwide, Inc. Page 19
E. Common Law Claim for Sexual Harassment
Count IV of the complaint sets forth a claim for failing to provide a safe work
environment free from sexual harassment under Kerans v. Porter Paint Co., 575 N.E.2d
428 (Ohio 1991). The district court awarded summary judgment to C.H. Robinson for
the same reasons it awarded judgment on the other hostile work environment claims.
The parties dispute the specific contours of the common law claim as defined by
the Ohio case law. See McCombs, 395 F.3d at 354 (recognizing that Ohio common law
sexual harassment claim requires an additional showing of a “past history of sexual
harassment about which the employer knew or should have known,” but observing that
Ohio courts have failed to reach a precise definition of “past history”). Both parties
acknowledge, however, that in the main, the elements of the claim are identical to those
of a Title VII hostile work environment claim. We therefore reverse the district court’s
summary judgment ruling on this claim as well, because of the outstanding questions of
fact identified above, without otherwise expressing any opinion on the contours or
validity of Gallagher’s common law claim.
IV. CONCLUSION
Based on the foregoing analysis, we REVERSE the district court’s award of
summary judgment and REMAND the matter to the district court for further proceedings
on all three hostile work environment claims.