E-Alert Case Updates

Isolated Comments and Rude Remarks Fail “Severe or Pervasive” Test

Amy Ward v. Acme Paper & Supply Co., Inc.
Case No. CCB-08-3257 (D. Md. 2010)
By Lydia S. Hu, Associate
Semmes, Bowen & Semmes (www.semmes.com)

The Honorable Catherine C. Blake of the United States District Court for the District of Maryland denied cross Motions for Summary Judgment on a disparate treatment claim and granted Defendant Acme Paper and Supply Company, Inc.'s Motion for Summary Judgment as to Plaintiff's hostile work environment claim. The issues were fully briefed, and there was no hearing necessary.

On May 23, 2005, Plaintiff became the first and only female warehouse employee to be employed by Defendant Acme Paper & Supply Company. She was initially assigned to the receiving dock full-time. Over the next year, Plaintiff's duties were reassigned several times until she received permanent assignment to rotating jobs that included sweeping floors, straightening boxes and pallets, taping boxes and emptying trash cans. The trash cans weighed between thirty and fifty pounds.

On July 14, 2006, Plaintiff notified her employer that she is pregnant and provided a physician’s note explaining that she should be excused from lifting anything over ten to fifteen pounds until May 2007. Accordingly, this would require an accommodation for her trash duty. When Ms. Ward requested an accommodation, her employer responded by way of a July 26, 2008 memorandum stating that "it is the Company's policy to accommodate any restrictions an employee may have due to work-related injuries." See Ward v. Acme Paper & Supply Co., Inc., No. CCB-08-3257, *3 (D. Md. August 12, 2010). As Plaintiff's pregnancy was not work-related, her employers informed her that Acme would not accommodate her new restrictions. Plaintiff was placed on leave and she received disability payments through her union.

Shortly after she told her employer she is pregnant, one of her supervisors allegedly disseminated the information among Acme employees. One of the employees approached other male colleagues and congratulated them on being the father of Plaintiff's baby. Plaintiff allegedly complained to her supervisors.

On November 6, 2006, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). She claimed that she was discriminated against based on her sex in violation of Title VII, but the charge did not mention her co-workers' comments about her pregnancy, comments regarding the father of her child, nor did it use the terms harassment or hostile work environment. In early 2007, the Plaintiff gave birth, and she resigned from her job. A year and a half later on December 4, 2008, Plaintiff filed suit against Defendant Acme alleging that the company discriminated against her based on her sex and subjected her to a hostile work environment. Both parties moved for summary judgment.

Plaintiff alleges that Defendant Acme discriminated against her on the basis of sex in violation of Title VII because Defendant refused to accommodate her pregnancy-related weight lifting restriction. Pregnancy discrimination is a form of discrimination on the basis of sex as defined by 42 U.S.C. § 2000e(k). Defendant argued that it did not intentionally discriminate against the Plaintiff. The company’s policies provide only general accommodations to work-related injuries. The company argued that because it acted on a pregnancy-neutral policy of only accommodating work-related injuries, it did not discriminate against the Plaintiff when it declined to accommodate her weight lifting restriction caused by her pregnancy.

Plaintiff countered that the company did not consistently apply its policy of accommodating employees only with work-related injuries. She pointed to deposition testimony of one supervisor in which he stated that he would personally accommodate some employees who incurred injuries unrelated to their work by giving them light duty assignments. Also, discovery revealed that the company accommodated one employee when he injured himself playing in a recreation soccer league by reassigning him from inventory management to computer work.

The Court explained that if it were undisputed that the company had established and consistently applied its pregnancy-neutral policy of accommodating work-related injuries, then the Plaintiff's claim of disparate treatment would fail. However, the record evidenced that the company’s application of its policy was a material fact in dispute. Accordingly, this issue was not appropriate for summary judgment. The Court denied both parties' Motions for Summary Judgment as to the issue of pregnancy discrimination.

The second issue was hostile work environment. Plaintiff claimed that she was subjected to the hostile work environment because co-workers made inappropriate and hostile remarks regarding the identity of the father of her child. Defendant Acme argued that Plaintiff failed to include her hostile work environment claim in her EEOC charge; and therefore, she failed to exhaust her administrative remedies, thus precluding her from raising the issue now in litigation.

Plaintiff argued that discrimination claims stated in an initial EEOC charge and those that are reasonably related to the EEOC charge may be maintained in a subsequent Title VII lawsuit. She argued that her hostile work environment claim was reasonably related to her pregnancy discrimination claim and that therefore, she should be considered to have exhausted her administrative remedies.

The Court was not forced to decide whether her hostile work environment claim was reasonably related to her pregnancy discrimination claims. The Court explained that Plaintiff's claim would fail regardless because the alleged hostile conduct was not sufficiently severe and pervasive. To establish the claim for sexual harassment under Title VII, Plaintiff must have established that "the offending conduct was (1) unwelcome, (2) based on her sex, (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment, and (4) imputable to her employer." See Ward, at *8 (internal citations and quotations omitted).

The Court looked to various factors to assess “severe and pervasive” such as the frequency of the discriminatory conduct, the severity of the conduct, and whether the conduct was physically threatening, humiliating, or mere offensive utterance, and whether it was unreasonably interfering with the Plaintiff's work.

The Court explained that the Fourth Circuit had set a high bar for plaintiffs with the severe and pervasive test. Complaints of mere rude comments or callous behavior will not satisfy this test. Here, Plaintiff's supervisor's decision to not accommodate the weight lifting restriction was an isolated incident. Accordingly, it will not constitute severe and pervasive conduct. Moreover, the Court found that her co-workers' remarks immediately following the news of her pregnancy were isolated, albeit rude and callous.

Based on the Court's findings that the misconduct was not severe and pervasive, the Court dismissed Plaintiff's hostile work environment claim.