Hostile Work Environment & Retaliation Claims Proceed After Employer Rehires Sexual Assault Attacker

Connors v. Jim Shorkey Family Auto Group, et al - United States District Court, Western District of Pennsylvania

Facts:  Lauren Connors ("Connors") worked for Shorkey Kia as a sales person from September 4, 2013 until October 31, 2016.  On October 18, 2015, Connors was sexually assaulted by a coworker, Todd Holland ("Holland"), during a work related trip.  Connors suffered severe emotional distress as a result of the sexual assault.  After an investigation and the sexual assault allegations were found to be true, Holland given the option to resign.  As a result of his resignation, Holland was entitled to severance pay and his commissions.

In October of 2016, Connors was informed that Holland would be rehired.  Connors repeatedly stated that she would be very upset if that happened and her mental health would deteriorate if Holland returned.  Connors proceeded to send multiple e-mails to her employer detailing how Holland's rehiring would negatively impact her health.  In response to Connor's complaints, she was given four options:  1) she could be moved to another dealership where she would have to change schedules and adapt to a new workplace; 2) she could accept a different position at her current dealership with "significantly" less pay; 3) Connors could remain at her current dealership (and her current position) and deal with the anxiety and mental health issues as a result of working with Holland again; or 4) Connors could resign.

After taking a week's vacation to think about her options, Connors returned to work on October 31, 2016 and was moved to a Finance Manager position, told by Jim Shorkey, III ("Shorkey") to "put her game face on", and that she should "control her emotions".  After working with Holland that day and experiencing physical illness and emotional issues, Shorkey refused to acknowledge Connors' mental anguish and refused to offer her an option that would allow her to keep her current position or make a similar income.

Connors subsequently filed suit against both Shorkey Kia and Shorkey on four claims:  sexual harassment and hostile work environment claims under Title VII of the Civil Rights Act of 1964 ("Title VII") and the Pennsylvania Human Rights Act ("PHRA") and a retaliation claim under Title VII and the PHRA.  The defendants subsequently filed a Motion to Dismiss.

Holding:  Let us break down the Motion to Dismiss based upon the causes of action asserted by Connors.

Hostile Work Environment Claims

For a claimant to establish a prima facie hostile work environment claim under either Title VII or the PHRA, it must be established that:  1) she suffered intentional discrimination because of her sex; 2) the discrimination was severe or pervasive; 3) it detrimentally affected her; 4) it would detrimentally affect a reasonable person in like circumstances; and 5) there is a basis for employer liability.  While not a per se rule, "in some cases the mere presence of an employee who has engaged in particularly severe or pervasive harassment can create a hostile working environment.  As plead, Connors alleged that Holland drugged and sexually assaulted her one year before he was rehired.  The Court held that under these circumstances, a reasonable person could reasonably feel that Holland's presence in the workplace created an abusive environment.

The defendants countered that the hostile work environment must fail because Connors did not "allege any facts that indicate that any sexual harassment or interaction between Plaintiff [Connors] and Holland occurred" after Holland had been rehired.  However, the Court pointed out that in evaluating the Motion to Dismiss, the Court could not consider any assertions made by the defendants outside the pleadings.  Instead, the Court noted that the facts alleged established that Connors worked with Holland on October 31, 2016; the the defendants' decision to rehire Holland could have required  Connors "to work with her attacker every day"; that Connors "was forced to work with Holland"; and that "Defendant...allow[ed Holland] to come into contact with Connors".  Based upon these claims, such interactions could reasonably have created a hostile work environment.

Consequently, the Court held that Connors had stated viable hostile work environment claims and defendants' Motion to Dismiss as to these causes of action was denied.

Retaliation Claims

To establish a prima facie retaliation claim under Title VII and the PHRA, a claimant must plead sufficient facts alleging that:  1) she engaged in protected activity; 2) the employer took adverse action against her; and 3) a causal link exists between her protected activity and the employer's adverse action.  Connors alleged that defendants retaliated against her for complaining to Shorkey about his decision to rehire Holland by changing her schedule, moving her to the Finance Manager position, and telling her to "put her game face on" and "fake it".

Defendants argued that the complaints to Shorkey do not constitute "protected activity" under Title VII and the PHRA because "an employee cannot dictate that the employer select a certain remedial action" following a complaint about sexual harassment.  However, according to Connors, Holland's rehire was not a "remedial action" but rather, in itself, the action that created a hostile work environment.  As well, prior precedent has established that an employee's complaints about an employer's failure to take adequate remedial action can constitute protected activity.  Consequently, the Court held that the complaints made to Shorkey qualify as "protected activity" under both Title VII and the PHRA.

The Court also disagreed with defendants that Connors did not suffer any "adverse employment action" as the pleadings, construed in the light most favorable to Connors, established that Connors had adequately alleged that she suffered an adverse employment action when her schedule and job responsibilities were changed.  As well, Shorkey's statements that Connors "put her game face on" and "fake it" may be "circumstantial evidence of a 'pattern of antagonism' following [her] protected conduct [that] can give rise to the inference" of discrimination. 

Judgment:  The Court denied defendants' Motion to Dismiss on the grounds that the facts, as plead by the employee, established she had at a prima facie hostile work environment and retaliation claims under Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Rights Act.

The Takeaway:  While this was a rather short opinion from the Court, the Court's direct and to the point analysis was spot on.  I believe the Court got it right here, given the relatively low burden a claimant must meet to defeat a motion to dismiss.  Simply reading through the facts of the case, as alleged by Connors, certainly painted a picture of a hostile work environment.  Add in the fact that after she made her concerns known to her employer, it appears she was retaliated against, made this a short and concise ruling.  While other facts may exist to "mitigate" the situation and justify any action/inaction taken by the defendants, I think they are certainly in a tenuous situation.  Telling a sexual assault victim to "put her game face on" and that she should "control her emotions" when her attacker is brought back to the workplace is one of the first things I would tell an employer NOT to say.

Majority Opinion Judge:  Judge Bissoon

Date:  January 30, 2018

Opinion:  http://hr.cch.com/eld/ConnorsShorkey013018.pdf