Takeaway: Where an employee alleging hostile environment sexual harassment never reported her supervisor’s allegedly offensive comments to HR despite her employer’s established anti-harassment policies, the worker could not go forward with her claim.
A research technician who was terminated after she failed to return from medical leave could not pursue her claims of sexual harassment based on hostile work environment in violation of Title VII of the Civil Rights Act of 1964 or retaliation under the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA), a federal appeals court ruled. The trial court correctly dismissed the claims before trial, the court said.
In June 2012, the plaintiff began working as a research technician in a laboratory at a medical school. At times, she got along with her supervisor, but she claimed that, starting in the fall of 2012, he began making verbally abusive and demeaning remarks about her work ethic, mental health and sexual orientation. She claimed that he called her a “typical Millennial” to imply she was spoiled or entitled and said that she seemed to be “off her meds.”
Most frequently, the technician claimed, her supervisor commented on what he perceived as her sexual orientation. During a conversation about workout routines, he said women who exercise a lot, like the plaintiff, look “manly” and are “lesbians.” The technician, a heterosexual woman, told her supervisor on multiple occasions that she was not a lesbian. She did not report the remarks to the medical school’s HR department or any other administrative employee at the medical school.
The plaintiff claimed that her lab co-workers also made harassing comments to her, telling her, among other comments, “to stop messing things up,” and “to take her meds.”
The technician consistently received positive performance reviews from her supervisor. After approximately two years in the lab, she received a 15 percent pay raise.
The employee had been diagnosed with attention-deficit/hyperactivity disorder, depression and anxiety in 2007. In the months leading up to February 2015, she reported worsening depressive symptoms.
On Feb. 16, 2015, the technician did not report to work. She emailed her supervisor a day later to inform him she was taking medical leave and would communicate only with HR. After her psychiatrist submitted supporting paperwork a few days later, a medical school administrator approved 12 weeks of FMLA leave.
After her leave expired in May 2015, the technician did not return to the lab. HR asked her if she intended to resign or extend her leave. She responded that her doctor was not allowing her to return to work, but she did not extend her leave or return to the lab. The medical school subsequently terminated her employment.
The technician sued the medical school for hostile work environment under Title VII and retaliation under the FMLA and the ADA, among other claims. The trial court dismissed the claims before trial, and the technician appealed.
Sexual Harassment Claim
The court first explained that different standards apply in evaluating an employer’s liability for a hostile work environment, depending on whether the alleged harasser is the victim’s supervisor or co-worker. For supervisors, an employer is strictly liable when a supervisor’s harassment results in a tangible employment action. A tangible employment action is a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.
There was no such tangible employment action here, the court said. The employee received a 15 percent raise and voluntarily decided not to return to work or extend her leave.
Under established law, because the supervisor’s conduct did not result in a tangible employment action, the university could successfully defend the claim by showing that: 1) It exercised reasonable care to prevent and correct promptly any sexually harassing behavior and 2) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm.
The employer made that showing here, the court said. First, it exercised reasonable care to prevent sexually harassing behavior by maintaining a policy prohibiting discrimination and harassment based on protected legal categories, including sex and sexual orientation. The policy, included in its staff handbook, provided instructions and multiple avenues for filing complaints.
Second, the technician unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. She admitted that she received the handbook at the start of her employment but did not report her supervisor’s comments to HR or any other administrative employee.
As to the claim of co-worker harassment, the court said, the comments allegedly made by the co-workers were not based on the technician’s race, color, religion, sex or national origin. Comments about her mental health did not give rise to liability under Title VII, the court said.
In addition, the university had no knowledge of any alleged co-worker harassment. An employer is liable for co-worker harassment only when the employee shows that her employer has been negligent either in discovering or remedying the harassment. An employer is not liable when a mechanism to report the harassment exists, but the victim fails to utilize it, the court said.
FMLA and ADA Retaliation Claims
As to the FMLA and ADA retaliation claims, the employee could not show that a disability or her taking FMLA leave played a motivating factor in the university’s decision to terminate her employment. She voluntarily chose not to return to her position following her leave. The university had held the position open and her supervisor had expected her return, the court said.
Trahanas v. Northwestern University, 7th Cir., No. 21-3278 (April 7, 2023).
Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.