InsideCounsel » February 2008
Uncooperative Employee Sinks Her Own Harassment Claim
Christine Brenneman had been on the job just two weeks when, she alleged, her supervisor, David Ryburn, started to make unwanted sexual advances toward her at a Famous Dave’s restaurant in West Des Moines, Iowa.
Ryburn began by winking at his new assistant manager and blew kisses to her every day. Four weeks after Brenneman’s arrival in February 2003, he started to slap her buttocks. Ryburn also allegedly made off-color and improper remarks: He offered to review Brenneman’s job performance at her home and invited her to go over his “expectations” after hours. When an envelope he gave her turned out to be too small, he suggested she “pretend it was a condom and slip it on real soft.”
Brenneman sued the Minnesota-based national BBQ chain, claiming Famous Dave’s exposed her to a hostile work environment and retaliated against her.
Faced with allegations like these, most employers would have nightmares about being held vicariously liable for sexual harassment. But it didn’t turn out that way for Famous Dave’s of America Inc. On Nov. 16 the 8th Circuit affirmed summary judgment to Famous Dave’s in an encouraging decision for all employers.
The court recognized “a company doesn’t have to be perfect,” explains Jonathan Hyman, an employment lawyer with Kohrman Jackson & Krantz.
“So if a company gets a complaint of harassment, has an adequate policy, undertakes an investigation ... and then makes what it thinks is a reasoned remedial step to stop the harassment, courts much more often than not aren’t going to second-guess what the company does. The remedial measures don’t have to be perfect either; they just have to be reasonable and adequate,” he says.
Employee Cooperation
The appeals court also asserted that harassed employees, as upset and victimized as they might feel, must cooperate with their employers’ efforts to investigate the problem and set things right. Failure to do so could torpedo employees’ ensuing Title VII claims.
“The strong message to employers is that ... the employee has some obligation to work with the employer to try to resolve whatever issue there is that has been raised,” explains Famous Dave’s counsel George R. Wood, a shareholder in Littler Mendelson.
The 8th Circuit did find a prima facie case that Ryburn’s “offensive touching and humiliating comments” were sufficiently severe or pervasive to create a hostile working environment.
Famous Dave’s was therefore on the hook for Ryburn’s alleged harassment, unless the company could prove it exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and also that Brenneman unreasonably failed to take advantage of preventive or corrective opportunities.
But Brenneman argued Famous Dave’s was ineligible to use the so-called Ellerth-Faragher affirmative defense because the company constructively discharged her by making her working conditions intolerable and forcing her to quit. She criticized the company’s actions after she first complained to the HR department, six weeks after the alleged harassment started. HR offered to meet with her and Ryburn to rearrange her schedule and to move her to another Famous Dave’s location.
