Title VII, tort claims revived for gay SkyWest agent who alleged years of same-sex harassment

By Joy Waltemath

By Lorene D. Park, J.D.

Remanding a gay airline agent’s Title VII hostile work environment claim, the Tenth Circuit found that untimely incidents that were similar to recent incidents—where male supervisors allegedly touched and sexually propositioned him—should have been considered part of the same pattern which, taken as a whole, may have been sufficiently severe or pervasive to alter the conditions of employment. Noting that his complaints were met with threats of termination and that he was fired soon after a fall 2010 report of harassment, the appeals court also reversed summary judgment on the employee’s retaliation claim. His claim for emotional distress was also revived (Hansen v. SkyWest Airlines, December 21, 2016, McKay, M.).

Harassed in Utah. The employee claimed he was sexually harassed by several supervisors and coworkers during his eight years with SkyWest. For his first four years, he worked as a customer service agent in Salt Lake City, where supervisors propositioned him for sex. One supervisor, who is also gay, allegedly pushed himself against the employee, commented on his smell, and sent him an email that was sexual in nature. At some point the employee’s psychotherapist discussed his psychological well-being with the employer, informing SkyWest that he had post-traumatic stress disorder (PTSD) triggered by discrimination and conflict. The employee was granted intermittent FMLA leave for times he felt stressed or threatened.

Harassed in Wyoming. In 2007, the employee transferred to Jackson, Wyoming, where he was a ticketing agent. There he was primarily harassed by a coworker (who later became his direct supervisor) and their supervisor, both of whom also were gay and were dating each other. According to the employee, the coworker often rubbed his genitals against the employee and made sexual remarks such as “Oops. Did that get you excited?” The supervisor once arranged travel accommodations for a business trip such that the three men would share a room. When the employee complained to the station manager, they allegedly “pushed” him into a corner and demanded to know why.

In 2008, when the coworker was promoted to supervisor, he allegedly made it clear the employee would be promoted as a reward for sex. There were also sexual remarks and invitations, including to go skinny-dipping. The unwanted touching also continued.

Employee complains, is himself investigated. In April 2009, the supervisor again rubbed his genitals against the employee’s lower body—this time in front of witnesses at the ticket counter. He also stalked the employee, who at one point pushed past him to escape the advances. The employee again complained, and the station manager accused him of making it up and threatened his job. After the employee complained to HR, he became the subject of an investigation for shoving the supervisor. He was sent home until June.

Discrimination charges. In 2009 the employee submitted an intake form to the Wyoming Fair Employment Program (FEP) complaining of sex and disability discrimination, but was told he could not include sex because it was a “sexual orientation” claim, so he limited his charge to age and disability discrimination. Thereafter, his supervisor was transferred to Seattle and he had a six-month respite from harassment. But it resumed in 2010 when the supervisor returned. The employee again complained to HR and to the station manager but nothing was done. He filed a second FEP charge in August 2011, claiming sex discrimination, harassment, and retaliation.

Termination. Meanwhile, the employee was fired based on a January 2011 incident in which he argued with a coworker. One of his alleged harassers was involved in the investigation and did not interview witnesses who could have supported the employee’s version of events.

Sexual harassment claim remanded. Reversing summary judgment, the Tenth Circuit concluded that the district court erred in failing to consider events that occurred more than 300 days before the employee’s 2011 FEP charge. Under the Supreme Court’s ruling in Nat’l R.R. Passenger Corp. v. Morgan, the lower court should have determined whether they were related enough to constitute part of the same hostile work environment. Also, while the district court made much of the fact that the employee filed a 2009 administrative charge alleging only age and disability discrimination and another in 2011 for sex discrimination, the prior charge was immaterial to the Morgan analysis of whether the prior harassing acts were related to the timely ones. Nor did it matter that the harassment abated for the six months that the alleged harasser worked at a different location. The prior acts could still be considered “part of the whole.”

For example, the court should have considered the alleged April 2009 incident where the supervisor rubbed himself against the employee’s lower body. In the appellate court’s view, this was clearly related to the October 2010 incident where he allegedly did the same thing. For these reasons, the sexual harassment claim was remanded for the district court to consider whether, taking into account all related acts of sexual harassment, a reasonable jury could conclude that it was sufficiently severe and pervasive to create an abusive working environment.

Retaliation claim also revived. Summary judgment was also reversed on the retaliation claim. While the district court found that the employee did not establish a prima facie case because any protected opposition was “too remote in time” from his termination, the court failed to consider more recent instances when the employee reported sexual harassment, including objecting to the supervisor’s return to the Jackson location in the fall of 2010, reminding the station manager that he had a pending grievance against the supervisor, and renewing his request for an accommodation because his PTSD was triggered by recent sexual harassment. This was reversible error.

Emotional distress. Also reviving the employee’s intentional infliction of emotional distress claim under Wyoming law, the appeals court held that a jury could find all four factors considered in determining if workplace conduct is sufficiently outrageous. These included: (1) an abuse of power; (2) repeated incidents or a pattern of harassment; (3) unwelcome touching and offensive physical contact; and (4) retaliation for refusing or reporting sexually motivated advances. Here there was ample evidence of an abuse of power by supervisors who allegedly threatened the employee if he did not submit to sexual advances, and there were repeated incidents of alleged sexual harassment for a considerable number of years, including unwelcome non-negligible physical contact. Consequently, the district court was wrong to dismiss the claim.

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