12/1715 – By: Dan Cohen
Loretta Rester worked as a graphic designer at the Hot Springs Village Voice, an Arkansas newspaper owned by Stephens Media. During a meeting with her supervisor, William Elderton, the newspaper’s general manager, a confrontation ensued concerning revisions to a proposed article that had been rejected by a customer. According to Rester, a “heated exchange” occurred. Elderton slammed his hands on a desk and began screaming and cursing at her. Rester said she rolled her chair back, stood up and attempted to leave, but Elderton put his hands on her three times, and physically prevented her from leaving until she began screaming and cussing.
After the incident, Rester went outside to her car for about ten minutes. She then returned and met with Elderton and the editor. Elderton apologized, and Rester worked the rest of the day. She reported the incident to the newspaper’s publisher and Elderton’s supervisor nine days later. She then met with a human resource representative a few days later. No disciplinary action was taken against Elderton. Rester tendered her resignation a week later, and rejected the newspaper’s efforts to retain her even after she was notifed that Elderton would soon be retiring.
Rester sued Stephens Media, Elderton and the human resources representative individually, alleging violations of Title VII and state law. Rester claimed sex discrimination, a hostile work environment, constructive discharge and retaliation. So, how do you think the court ruled? This should be an easy one, right? Elderton clearly crossed the line; he slammed his hands on the desk, cussed out a subordinate employee, touched her three times and physically prevented her from leaving the scene. Oh, boy! This has all the makings of a large verdict against the defendants, right? Wrong!
The jury never even heard the case because it was dismissed by the district court and upheld by the Eighth Circuit on appeal. The case is Rester v. Stephens Media, LLC, et al., 739 F.3d 1127 (8th Cir).
To meet her prima facie case of sex discrimination, Rester was required to prove she (1) belonged to a protected class; (2) possessed qualifications to perform her job; (3) suffered an adverse action; and (4) was treated differently than similarly situated employees outside the protected class. Only the third and fourth elements were in dispute. Because “Rester suffered no termination, did not lose pay or benefits, and her job duties and responsibilities did not change,” she could not meet her prima facie case of sex discrimination. The Court noted further that “the record contains no evidence to support the fourth element that she received different treatment because of her sex. Rester has not shown that Elderton’s actions were motivated by her sex.”
Rester was required to show (1) membership in a protected group; (2) the occurrence of unwelcomed sexual harassment; (3) that the harassment occurred because of her sex; and (4) that the harassment affected a term, condition or privilege of her employment. Looking at the totality of the circumstances, the Court determined that “[t]his singular incident, while most unfortunate, does not meet the standard required. The incident related to a workplace disagreement and the conduct does not denote a sexist connotation. On this record, Rester has failed to establish that this incident permeated the workplace and thus has not established a prima facie case of a hostile work environment.” According to the Court, a hostile workplace requires “extreme” conduct “rather than merely rude or unpleasant” conduct.
To establish a case of constructive discharge, Rester had to show that (1) a reasonable person in her situation would find the working conditions intolerable, and (2) the employer intended to force her to quit. The Court also noted that “[a]n employee must, however, grant her employer a reasonable opportunity to correct the intolerable condition before she terminates her employment.” The evidence established that defendants sought to retain Rester as an employee. Nothing suggested that they should have known that Rester would leave her employment. Furthermore, because Rester’s claim of a hostile work environment failed, her claim of constructive discharge had to fail as well. The Court relied upon Penn. State Police v. Suders, 542 U.S. 129, 147, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004) (“A hostile-environment constructive discharge claim entails something more [than an actionable hostile work environment]”).
Rester was required to show that “1) she engaged in protected conduct; 2) a reasonable employee would have found her employer’s retaliatory action materially adverse; and 3) the materially adverse action was causally linked to her protected conduct.” As stated above, Rester failed to establish that she was subject to adverse employment action, let alone materially adverse employment action. Thus, she cannot establish a prima facie case of retaliation.
Even though Stephens Media was spared having to try the case to a jury, which would have been costly, and could have been quite challenging because of the “jerk” factor, I bet the company was not happy it spent as much time, energy and money involved in litigating the case to the point where it could be dismissed short of trial. Certainly, with depositions and other discovery, preparation of the legal papers and convincing the trial court to dismiss the case, and defending the trial court’s ruling through the appellate process, Stephens Media still spent three years litigating the case and tens of thousands of dollars along the way.
While it is not clear in the decision whether Stephens Media provided training to its management team about discrimination and harassment in the workplace, I suspect there was none or else Mr. Elderton probably would not have screamed and cursed at a subordinate employee, let alone place his hands on her and physically restrain her from leaving the scene. In some jurisdictions, like California, harassment training is mandatory. Here in the Sixth Circuit, employers who cannot show that they conduct harassment training find it increasingly difficult to defend themselves in Title VII harassment cases. Moreover, had Elderton been counseled and required to complete anger management training, perhaps Rester would not have quit and then filed suit.
So, what’s the point? Conduct training! And, make sure you know how to manage harassment complaints – even when the complaint is about jerkism, not sexism, racism, etc!