An employer’s failure to keep an female employee apprised of its response to her complaints of sexual harassment, and its further failure to follow through on remedial actions could lead a reasonable jury to find that the employer did not take the complaints seriously. Such failures form the basis of a recent decision by the 8th U.S. Circuit Court of Appeals in which the Court denied an employer’s post-trial motion regarding a $100,000 jury verdict. Sheriff v. Midwest Health Partners, P.C., 8th Cir., No. 09-3367, August 30, 2010.
Sheri Sheriff was a licensed physical therapist employed by Midwest Health Partners in Nebraska. Midwest had acquired a chiropractic clinic in 2003 and had asked Sheriff to run the clinic’s physical therapy department. After she began working at the clinic, one of the employed chiropractors (Dr. Meyer) began to act toward Sheriff in a way that made her uncomfortable, including touching her and putting his arm around her. When she informed one of the nurses about Dr. Meyer’s conduct, Sheriff was told to “get used to it,” because “that’s just the way he is.”
Dr. Meyer’s conduct continued, and Sheriff ultimately reported the issue to Midwest’s management. Sheriff also wrote a letter to Meyers, explaining that the advances were “NOT okay!” and that she did not want further physical contact with him. Meyers apologized to Sheriff and said it wouldn’t happen again.
In spite of the fact that Midwest’s president (Dr. Vrbicky) was aware of a prior female patient’s complaint involving Meyer, no one from Midwest discussed Sheriff’s allegations with Meyer until Sheriff learned of that complaint, and of other instances involving another female patient. At that point, Sheriff spoke to Midwest’s Practice Manager about the situation. In addition, Meyer again began to touch, grab, and embrace Sheriff, wrapping his arm around her and touching her breasts. Sheriff then obtained an attorney who wrote to Midwest, advising it “to take aggressive action to protect itself,” and making several recommendations to stop Meyer’s behavior. Seven weeks later, in November 2005, Midwest met with Meyer, asking him to participate in counseling and requesting that he sign an acknowledgement of his inappropriate behavior. He did neither, and his behavior with respect to Sheriff took on a condescending and intimidating tone.
In a January 4, 2006 letter, and at a January 13, 2006 meeting, Midwest again set forth its remedial recommendations, and again, Meyers refused to participate. Finally, on February 23, he agreed to attend sexual harassment training, but only attended one of five sessions. Durin this same period, Sheriff was told that Meyer would be terminated within 45 days. He was not, and Sheriff was given no reason for that turn of events.
On April 11, 2006, Sheriff resigned and brought a legal action against Midwest. At trial, a jury awarded to Sheriff $100,000 on her hostile work environment claim, and Midwest filed a post-trial motion for judgment in its favor. The 8th Circuit denied that motion, finding that the jury had a reasonable basis for its verdict.
The Eighth Circuit’s opinion includes two points of which employers should be aware: first, it rejected Midwest’s argument that Meyer was simply a “touchy person” who patted men on the buttocks and, therefore, his conduct was gender neutral and not sexual harassment. Once again, a federal appellate court has rejected that argument, pointing to the fact that in this case, there was no evidence that Meyer “pulled men into his body” nor was there evidence of any complaints by men or by male patients. Secondly, at least three times in its opinion, the Court mentions the fact that Midwest failed to apprise Sheriff that it was taking action in an attempt to remedy the complained-of situation, or failed to follow up on the termination action that it told her that it was taking. It cites those failures as a possible basis for the jury’s finding that Midwest did not take Sheriff’s complaints seriously. Whether or not that was the reason for Midwest’s failures, it is important to note that this Court believed that open communication with Sheriff regarding Midwest’s remedial efforts was an important element of the employer’s responsive actions to Sheriff’s complaints. While there is no legal obligation to inform a complainant of each and every detailed step in a disciplinary action taken against an alleged harasser, the fact that the complainant is treated with courtesy and respect, and is a full participant in the process, can play a role in the way that a court or a jury views the credibility and effectiveness of the employer’s attempted remedial actions.