Five-Year Harassment Is ‘Continuing Violation’

Interesting article from VLW:

By Deborah Elkins
Published: February 3, 2011


A female employee on a Wakefield hog breeding farm has stated a claim for sexual harassment by male coworkers with allegations of unwanted touching, disparaging remarks and an incident involving a male coworker looking into the women’s shower room through drilled peepholes; the Norfolk U.S. District Court says plaintiff’s timely “anchor” events will allow her to bring in allegations of harassment outside the time frame of her EEOC charge.

Defendant owns and operates a hog breeding and farrowing facility, known as Farm 8508 in Wakefield, Va. Plaintiff Bridgett Edwards began working for defendant at the Farm in April 1996. In the past, she has received good job performance evaluations, resulting in her promotion from her starting position in the farrowing department to “herds person four.” 

During the 2003-2008 timeframe, plaintiff alleges her male “Hispanic co-workers” began to harass her and a co-worker, including unwanted touching and disparaging remarks. Much of this behavior was reported to defendant’s management, but management failed to take disciplinary action against the male employees. The alleged harassment reached a pinnacle in December 2007, when plaintiff and her female co-worker discovered a male employee, Salvador Hernandez, looking through a peephole drilled to view the women’s shower room. Management patched the peepholes but did not replace the door. 

Plaintiff alleges management informed her it would not fire male employees because the farm would be short-handed. Plaintiff eventually reported the shower incident to police and Hernandez was arrested, fined, sentenced and terminated by defendant. 

On April 12, 2010, plaintiff sued for sexual harassment and wrongful retaliation.

Defendant has moved for dismissal under Rules 12(b)(6) and 12 (b)(1). 

In count I, plaintiff has alleged defendant discriminated against her based on her gender by “allowing continual sexual harassment of Plaintiff by her male co-workers thereby creating a sexually hostile work environment.”

This court concludes that in order for several events to qualify as part of the same hostile work environment, all the incidents must be so significantly related to each other as to comprise one unitary and ongoing unlawful employment practice. Plaintiff must show defendant committed an act of sexual harassment within 300 days of filing her EEOC charge. She can support her claim with other earlier incidents if she can show the timely act is part of the same hostile work environment as the earlier “untimely” acts, and is thus capable of “anchoring” them to her claim. Here, plaintiff alleges three “anchoring” acts: Miguel Navarro brought a digital camera to work and took plaintiff’s picture against her wishes; several men continued to group together and talk among themselves, gesturing and pointing toward plaintiff; and the shower peephole incident occurred.

Plaintiff also has alleged nine events that are part of the same hostile work environment as the alleged anchoring acts. To be considered part of one hostile work environment, the pre-limitations actions must be significantly related to the anchoring acts so as to comprise one unitary and ongoing unlawful employment practice. At this point, based on the following indicators, that seems more plausible than speculative. 

However, plaintiff’s factual allegations fail to make out a prima facie case of retaliation against defendant. Plaintiff alleges management informed her it was going to transfer her to another farm, but she understood the same kind of harassment would occur there. Her allegations fail to show any detriment created by the transfer other than the fact that her new job assignment is possibly less appealing. She has not alleged any decrease in compensation, job title, level of responsibility, chance for promotion or any other cognizable malady. 

The court denies the motion to dismiss the sexual harassment claim and grants the motion to dismiss the retaliation claim, but grants leave to amend.

Edwards v. Murphy-Brown LLC (Davis, J.) (Published) No. 2:10cv165, Jan. 4, 2011; USDC at Norfolk, Va.; Frederick H. Marsh for plaintiff; Matthew W. Smith for defendant. VLW 011-3-039, 57 pp.

Please contact us if you have questions or need legal assistance.
Tucker Griffin Barnes P.C.
Charlottesville, Virginia
434-973-7474

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