Employment discrimination, retaliation claims against Verizon focus

In a case where three former employees of Verizon Wireless claimed they were subjected to a hostile work environment and that the company failed to properly address their claims of discrimination, the U.S. District Court for the Western District of New York concluded there was sufficient evidence to support some of their claims and therefore denied in part Verizon's motion for summary judgment.

In Davis v. Verizon Wireless, Sams v. Verizon Wireless and McDonald v. Verizon Wireless, Judge David G. Larimer found there was evidence to support that a hostile environment may have existed. In addition, the judge denied Verizon's motion for summary judgment on one of the plaintiff's retaliation claims.

Plaintiffs' Lawsuits

Asserting claims under Title VII of the Civil Rights Act and the New York Human Rights Law, the plaintiffs, Karen D. Davis, Karin M. Sams and LaTanya A. McDonald, filed three separate lawsuits against their former employer, Verizon Wireless. The court consolidated the actions pursuant to Federal Rules Civil Procedure 42(a).

From 2001 to 2003, the plaintiffs worked in the financial services department at Verizon. During that time, they alleged that two supervisors, Greg Callaghan and Jeremy Schaut, engaged in discriminatory behavior. The plaintiffs further alleged that Verizon failed to properly investigate and address their complaints of discrimination and retaliated against them for their complaints.

Verizon filed motions for summary judgment against the plaintiffs' claims.

Sexual Harassment Claim

The court first addressed Sams' claim of quid pro quo sexual harassment.

Sams alleged during the first couple of weeks that she started working at Verizon as a credit order and operations supervisor (COOS) in November 2001, Callaghan told her that if she played [her] cards right, there was an opening for a managerial position between associate director and a COOS.

One week later at a meeting, which took place at a hotel, Sams claimed that Callaghan asked her if she would like to go to his hotel room and have some fun. Sams stated she told Callaghan that she was happily married and that his sexual advances were unwelcome. Sams further alleged that Callaghan brought up the promotion a second time and remarked that she could use the new position and pay. Callaghan denied propositioning Sams.

Sams also claimed Callaghan retaliated against her after she refused his alleged propositions by decreasing her job responsibilities and excluding her from project assignments. Sams contended the human resources department initially took no action when she complained about Callaghan. The company also denied her request to be removed from Callaghan's supervision due to a purported hiring freeze.

In July 2002, Sams' doctor recommended she take disability leave due to depression. Her benefits discontinued though when the company discovered she was working at a restaurant as a waitress while on disability leave. Sams was subsequently terminated in October 2002.

After reviewing the facts of the case, the court found that Verizon was entitled to summary judgment on Sams' quid pro quo sexual harassment claim. Specifically, the court found that Sams did not suffer any adverse employment action based on the fact that there was no intermediate managerial position that was available to Sams or anyone else at Verizon.

Even if Sams had reason to believe from Callaghan's words that such a position was somehow attainable, that belief is insufficient evidence that any adverse employment action was taken, explained Judge Larimer, citing Burlington Indus. Inc. v. Ellerth, 524 US 742, 754 (1998). Rather, claims involving an unfulfilled threat of adverse employment action should be analyzed, not as quid pro quo claims, but as hostile work environment claims.

The judge also found Sams' claims that her responsibilities were reduced and that she was excluded from projects did not meet the standard for an adverse employment action.

The Supreme Court has stated that an adverse employment action 'constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits, Burlington Indus., 524 US at 761, wrote the judge. Within the context of this case, merely ignoring an employee or depriving her of being present at certain meetings or having certain responsibilities does not rise to the level of an adverse employment action. These purported incidents are not indicative of a significant change in employment status.

Gender-Based Hostile Work Environment

The court also found Verizon was entitled to summary judgment on Sams' gender-based hostile work environment claim since there were only two alleged incidents of sexual harassment and that Callaghan did not make any further advances.

The factual allegations, even if believed by a jury, simply do not support a finding of a hostile work environment based on sexual harassment, determined the district court. The fact that there were only two incidents, occurring within one week of each other, and that such incidents, albeit inappropriate, were brief and not threatening and do not support Sams' hostile work environment claim.

Race-Based Hostile Working Environment

The court next ruled that Verizon was not entitled to summary judgment on Davis' and McDonald's hostile work environment claims. Davis and McDonald are both African-American.

As an employee of Adecco, a temporary agency that provided employees to Verizon, McDonald worked at Verizon as a customer service representative from July 2001 to August 2002.

Davis was hired directly by Verizon as a COOS where she supervised 10 to 15 customer reps at any given time. Davis reported to Callaghan, who she claimed excluded her from meetings, denied her supervisory direction and undermined her ability to do her job by firing African-American reps that reported to her without first consulting her or utilizing a progressive disciplinary process.

Davis also alleged Callaghan treated Caucasian employees more favorably with regard to promotions and work schedules.

In addition to Callaghan, both Davis and McDonald alleged they were subjected to a hostile working environment by Schaut who was a COOS. Davis and McDonald claimed that Schaut used racist and derogatory phrases such as nigger, those people and you people.

Davis and McDonald contended that Verizon failed to take any immediate action when they complained about Schaut and Callaghan. It was not until Davis and McDonald filed EEOC charges that Verizon terminated Callaghan in April 2002.

Based on the facts of the case, the court found that summary judgment was precluded since there were factual issues that needed to be resolved by a jury.

I find that a reasonable jury could conclude that Davis and McDonald were subjected to a race-based hostile working environment in the financial services department, wrote the court. This environment was created when Schaut used the racial epithet 'nigger' in the workplace, referred to himself as a 'slave-driver' or 'slave master,' use of the phrases 'you people,' 'those people,' 'they' or 'them' when addressing a predominantly African-American workforce, and directed his abusive management style ... toward that same predominantly African-American workforce.

However, the court noted that a jury could also decide that Schaut was simply admonishing a group of employees who were not at their work stations by addressing them collectively as 'you people,' and that there was no discriminatory intent involved.

Overall, the court found the record was not clear with regard to the frequency and under what circumstances that Schaut used the alleged derogatory terms. Therefore, the court denied Verizon's motion for summary judgment based on its determination that it should be left for a jury to decide whether Davis and McDonald were subjected to a hostile working environment.

Adecco Claim

In addition to naming Verizon as a defendant in her lawsuit, McDonald also named Adecco as a defendant since the agency was her employer. The court ruled that Adecco was entitled to summary judgment on McDonald's claim.

An employer may escape liability if it shows that (a) the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and (b) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer, explained Judge Larimer, citing Burlington Indus., 524 US at 765.

The facts of the case indicated that when McDonald complained to Adecco about her assignment at Verizon, the agency offered to find her another job. McDonald, however, declined to be transferred since the Verizon facility was convenient to her home.

Here, Adecco has shown that it had a discrimination policy in place, that it gave plaintiff a copy of that policy, that plaintiff failed to take the steps necessary to complain to her Adecco supervisor about that harassment, and even assuming that she did, she failed to take advantage of whatever corrective measures the employer offered, wrote Judge Larimer. I find, therefore, that Adecco is entitled to summary judgment.

Retaliation Claims

Lastly, the court addressed the plaintiffs' retaliation claims.

Davis asserted that she was laid off in March 2003 in retaliation for her EEOC charge. The court disagreed.

I find that Davis has failed to raise an issue of fact regarding whether Verizon's proffered business reason (a business reorganization) was merely a pretext to cover improper retaliation, wrote Judge Larimer. It is undisputed that the reorganization that Verizon undertook had a significant impact and resulted in 120 layoffs in Rochester.

The judge also dismissed Sams' retaliation claim. The facts of the case showed that she was four of eight COOSs who were demoted in the summer of 2002 as part of the company's reorganization. In addition, she was terminated in October 2002 when the company discovered she had worked at a restaurant as a waitress while on disability leave.

With regard to McDonald's retaliation claim, the judge found that Verizon failed to provide a legitimate business reason for why it did not hire McDonald for a permanent position.

I find, however, that plaintiff McDonald has raised a sufficient question of fact regarding whether Verizon's decision not to hire her in August 2002 was in retaliation for her charge of discrimination, concluded Judge Larimer. McDonald filed a charge of discrimination with the EEOC on May 10, 2002. Three months later, Verizon elected not to hire her for a permanent position, although it hired approximately 20 to 30 other Adecco employees into permanent positions.

Court's Ruling

In conclusion, the court dismissed all of the plaintiffs' claims with the exception of Davis' and McDonald's race-based hostile work environment claims and McDonald's retaliation claim.

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