Sexual-Harassment Plaintiff Cannot Establish A Tangible Employment Action When She Simply Stopped Reporting For Work
ROBY v. CWI, INC. (August 27, 2009)
Misty Roby was a cashier at a CWI retail store. For months, she experienced sexual-harassment by a store supervisor, Joe Schiavone. Notwithstanding the fairly frequent and offensive behavior, she did not report it. Only after another supervisor overheard a comment she made to a coworker and specifically asked her about it did she report the conduct. The store manager immediately reported it to Human Resources, which conducted an investigation. The company reorganized the store schedule so as to minimize the times Roby and Schiavone worked together. As a result of the investigation, Schiavone received a written warning. Roby was informed of the results of the investigation. Several weeks later, when Roby complained about having to close the store with Schiavone, she was allowed to go home and stay home until the store manager returned from vacation. Although the company told her that they could not accommodate her desire to never be scheduled at the same time as Schiavone, they kept her on the schedule and expected her to come to work. She simply never returned. Instead, she brought an action under Title VII alleging the sexual harassment and also alleging that she was retaliated against for her complaints. The district court granted summary judgment to CWI. Roby appeals.
In their opinion, Judges Flaum, Williams and Lawrence affirmed. In order to prevail on a hostile work environment claim, the Court noted that Roby had to demonstrate employer liability. Here, because Schiavone is a supervisor, the company is strictly liable if there was a tangible adverse employment action. If not, however, the company may assert an affirmative defense that they used reasonable care in trying to prevent the harassment and that Roby failed to take advantage of corrective opportunities. The Court found no tangible employment action. The record presented insufficient support for an actual discharge or for the degree of intolerable working conditions necessary to establish a constructive discharge. Although Roby continued to have to work with Schiavone, CWI made an effort to minimize their contact. Without a tangible employment action, the Court found that the company met its burden on the affirmative defense. It conducted an effective investigation and disciplined Schiavone. Roby, on the other hand, failed to report the behavior when it first occurred and did not take advantage of the company’s anti-harassment policy. With respect to Roby's retaliation claim, she must establish the presence of a material adverse employment action. The Court found no such evidence in the record.
Michael Rigney practices in the law offices of GVC Ltd. in Chicago. In this blog, he reports on select