Employee's Failure to Follow Employer's Anti-Harassment Reporting Policy to Alert Employer of Harassment Dooms Title VII Claim

Johnson v. Hyatt Corp. - United States District Court, Western District of Texas, San Antonio Division

Facts:  Jasmine Johnson ("Johnson") worked as a cocktail waitress at a Hyatt hotel bar, Q Bar, in San Antonio.  At the time she was hired, Johnson received an employment handbook that included a copy of Hyatt's anti-harassment reporting policy.  The anti-harassment policy noted that employees that felt harassed should tell the individual to stop the harassing behavior.  Further, the harassed employee was instructed to then report the matter to Human Resources, their General Manager, or the Ethics Point Hotline.  

Johnson's case against Hyatt centered on several interactions during the course of her employment:

1. The first interaction was with a hotel guest, Chapman, who directed harassing behavior toward Johnson including both unwanted sexual advances and sexually explicit comments.  Johnson claimed the incidents happened every few months when Chapman was at the hotel.  Johnson reported Chapman's behavior to her immediate supervisors and the supervisors exchanged emails with Chapman in which Chapman apologized for "causing any issues" and was subsequently encouraged to return to Q Bar.  Johnson claims that the harassment continued after the supervisors took no action to report the harassment, per Hyatt's policies.  After Hyatt's human resources team later learned of Chapman's conduct during another investigation, Chapman was instructed to not return to Q Bar.
2. Johnson also alleged that another hotel guest, Paganelli, who was at Q Bar when Johnson was working one evening.  Video footage caught Paganelli grab Johnson by the arm and waist and pull her toward him.  Paganelli then kissed and bit her neck.  Although Johnson immediately left the area, she did not tell anyone.  Another hotel guest saw the interaction and reported it to another Q Bar employee.  The hotel guest also approached the front desk and informed them of the incident.  Approximately ten minutes later, a hotel security officer arrived at Q Bar and asked Johnson if she wanted to press charges.  Johnson only asked that Paganelli be removed from Q Bar after which he was instructed to return to his room.  Following the incident, Johnson called the police, who after viewing the video footage, arrested Paganelli in his hotel room.  Paganelli was subsequently evicted from the hotel and barred from returning.  The morning after Paganelli's arrest, Johnson spoke to Hyatt's human resources team in which she mentioned Chapman's behavior (noted above).  
3. Finally, about two months after the incident with Paganelli, one of the line cooks at Q Bar, Guerrero, approached Johnson and told her she "look[ed] like a f--king hooker."  Johnson proceeded to tell her union representative who told her to report Guerrero to his manager.  When Johnson did so, the manager apparently asked her a series of questions that insinuated Johnson instigated the interaction.  Although Guerrero offered to apologize, Johnson was uncomfortable speaking with him.  Hyatt's human resources team eventually spoke with Guerrero and issued him a written reprimand.  Shortly after Johnson's union filed a grievance on her behalf in regard to Guerrero's statements and the manager's questioning.  

About a month after the incident with Guerrero, Johnson filed a charge of discrimination with the Equal Employment Opportunity Commission detailing the incidents with Chapman, Paganelli, and Guerrero.  Johnson's complaint alleged harassment, discrimination, and retaliation due to her gender.  The EEOC proceeded to dismiss Johnson's charges, finding that Hyatt "had taken care of her complaints" and that, "by her own words[,] the harassment with all three individuals stopped."

Johnson proceeded to file suit against Hyatt claiming the company had violated Title VII by creating a hostile work environment and for retaliating against her.  Hyatt proceeded to move for summary judgment on Johnson's claims.

Holding:  (Note, while the Court had a lengthy opinion, considering both the hostile work environment and retaliation portions of Johnson's case, this brief will only look at the Court's analysis of the hostile work environment portion of the claim).

Under Title VII, an employer may be held liable for harassment if the employer fails to adequately respond to incidents of sexual harassment that have created a hostile work environment.  To prevail, a claimant must show 1) the claimant belonged to a protected class; 2) was subjected to unwelcome harassment; 3) the harassment was based on his or her sex; 4) the harassment was sufficiently severe or pervasive to alter the conditions of his or her employment and to create an abusive working environment; and 5) the employer "knew or should have known of the harassment in question and failed to take prompt remedial action."  Notably, conduct that is "merely offensive" is not actionable under Title VII.  The severity and pervasiveness of potentially offensive behavior is determined by looking at the totality of the circumstances, including the "frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."  Bear in mind, however, that conduct need not be both severe and pervasive; one or the other will suffice.

Assuming an employee has been subjected to severe and/or pervasive harssment, an employer "may avoid Title VII liability when harassment occurred but the defendant took 'prompt remedial action' to protect the claimant."  Remedial action can take many forms and courts can look to whether the offending behavior in fact ceased.

Chapman's Conduct

Hyatt argued that it had no obligation under Title VII to respond to or remedy Chapman's conduct.  Further, Hyatt argued that even if the harassment by Chapman was severe or pervasive, the company promptly and adequately responded.

The Court began its analysis with a recognition that frequent incidents of harassment, though not severe, can reach the level of "pervasive" thereby altering the terms, conditions, or privileges of employment such that a hostile work environment exists.  At the outset, Johnson had alleged that Chapman was a frequent guest at the hotel, had more than ten encounters with each other, and Chapman often used harassing language with her, asked her on dates, made sexual advances, and berated her when she declined.  Accordingly, the Court held there was sufficient evidence to establish a genuine issue of material fact as to whether Chapman's alleged conduct toward Johnson created a hostile work environment.

However, the Court recognized it must then look at what action Hyatt took.  As a general rule, an employer's obligation to take prompt remedial action is triggered only when the employee follows the reporting procedures in the employer's anti-harassment policy.  The record in this instance established that Hyatt's human resources department promptly responded to Johnson's allegations about Chapman when it first became aware of it.  As a result of Hyatt's actions, Chapman did not interact with Johnson further and had not returned to the hotel.  Johnson argued that Hyatt's remedial actions were delayed and inadequate because she had notified her immediate supervisor months (or even years) before Chapman was banned from the property.  Johnson argued she was not required to comply with Hyatt's formal reporting policies because the company allowed a more informal channel to be used.  However, Fifth Circuit precedent had established that an employer's remedial obligations under Title VII are not automatically triggered by a report to an immediate supervisor; rather the remedial obligations are only triggered once the employee complies with the anti-harassment reporting policy.  Consequently, the Court held that Hyatt's actions were a "prompt" response for the purposes of avoiding Title VII liability.

Paganelli's Conduct

In regard to Paganelli's conduct, Hyatt did not contest that his conduct was "severe".  Rather Hyatt argued it took prompt remedial action once it was notified of the conduct.  The Court recognized that shortly after Paganelli assaulted Johnson, another guest reported the conduct.  Further, Paganelli was subsequently asked to leave Q Bar and return to his room in which he was arrested just twenty minutes later.  After returning to the hotel the next morning, Paganelli was evicted and instructed not to return.  Notwithstanding Hyatt's actions, Johnson said they were inadequate because 1) the employee that learned of the harassment failed to follow Hyatt procedures by immediately reporting it through the appropriate anti-harassment channels; 2) the employee was not disciplined for his alleged inaction; 3) Hyatt security did not respond to Q Bar for several minutes; and 4) Hyatt allowed Paganelli to leave the bar and return to his room unescorted, rather than with an escort, per Hyatt policy.

The Court was unswayed by Johnson's arguments, however, pointing out that although Title VII requires a "prompt" response, it does not require an instantaneous one.  In this case, the employee would not reasonably be expected to have utilized Hyatt's anti-harassment reporting channels so quickly learning of the harassment by another Q Bar patron.  As well, the video footage showed that Hyatt security arrived less than ten minutes after the incident was reported.  Further, to the extent that Hyatt policy was not followed in regard to escorting Paganelli back to his room, Johnson apparently had no further contact with him once he left Q Bar.  As a result, the Court held that Hyatt had taken prompt remedial action upon learning of Johnson's incident with Paganelli.

Guerrero's Conduct

As for Guerrero's statement, Hyatt argued that the one time statement to Johnson did not constitute "severe or pervasive" conduct under Title VII.  Of note, Title VII does not "reach conduct that is merely offensive -- it proscribes only an environment that a reasonable person would find hostile or abusive."  "Simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to [actionable discrimination]."

The Court recognized that while Guerrero's statement was inappropriate and offensive, under Fifth Circuit precedent, the one time comment did not support a harassment claim.  Consequently, the Court dispatched with this portion of Johnson's claim on the grounds that Guerrero's comment did not amount to "severe or pervasive" conduct.

Judgment:  The District Court granted summary judgment in favor of Hyatt on the grounds that the employee could not establish a valid hostile work environment claim under Title VII as the conduct she complained off was not severe or pervasive, and Hyatt had established it took prompt remedial action upon learning of the complained of conduct.

The Takeaway:  This had to be one of the lengthier briefs I have written in some time, but there was quite a bit to unpack here in the Court's opinion.  I think the Court was right to recognize that while much of this conduct was inappropriate, it simply did not rise to the level of being severe or pervasive.  Even with the conduct that was held to be severe or pervasive, namely Paganelli's, Hyatt established it took prompt remedial action upon learning of it.  As precedent had established, Hyatt "delaying" in getting hotel security to Q Bar was minimal...such that less than ten minutes having passed before the problem was addressed was not a problem.

As well, note the Court pointing out that because Johnson failed to follow the anti-harassment policy in place, she could not then go and claim that Hyatt sat around failing to act.  Employees, let this case serve as a lesson:  Failing to follow your employer's anti-harassment policy can leave you in a tough spot if you then try and claim they failed to act and prevent the alleged harassment.

Majority Opinion Judge:  District Judge Garcia

Date:  November 11, 2018

Opinion:  http://hr.cch.com/ELD/JohnsonHyatt111118.pdf