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Garland's Digest
on employment discrimination law
online since 1997
 

 

Disclaimer: The case on which this summary is based may no longer be current law. Also, if the case was decided on summary judgment, the court recited the "facts" in the light most favorable to the non-movant, which may not be the true facts.

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Watts v. Kroger Co., 170 F.3d 505 (5th Cir. March 19, 1999)

Keywords: Title VII (hostile work environment sexual harassment)

Introduction: Carolyn Watts sued Kroger's under Title VII for hostile work environment sexual harassment and retaliation. The district court granted summary judgment on behalf of Kroger's. The Fifth Circuit affirms in part and reverses in part.

Facts: Watts was a produce clerk. Arthur Bullington became her supervisor in 1993. Watts claims that Bullington made inappropriate jokes both to and about her, continually made sexual innuendoes to her, and that he touched her on several occasions.

Watts complained to the store manager, Ricky Hayles, on July 7, 1994 that Bullington had made comments about her personal life (Bullington had said that Watts was a "homewrecker" and that she was "homeless").

Hayles spoke to Bullington the same day and Bullington never made any sexual comments or advances from that day onward.

On July 19, 1994, Watts filed a union grievance alleging sexual harassment. Kroger's investigated, but could not substantiate her claim. Kroger's verbally reprimanded Bullington anyway, and offered to transfer him or Watts to another store. Kroger's also offered to transfer Watts to another department.

Watts claimed that Kroger's retaliated against her by altering her work schedule -- which made it difficult to keep working at her second job (Federal Express).

Law:

1. Motion to strike
   1. The Fifth Circuit upholds the district court's decision to not consider statements that were not in the form of affidavits and were not sworn to.
2. Application of Burlington / Faragher
   1. Tangible employment action
      1. Changing an employee's work schedule is not a tangible employment action.
   2. Affirmative Defense
      1. For purposes of summary judgment, Kroger cannot establish the second prong of the affirmative defenses -- that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
      2. In addition to arguing that Watts waited too long to complain, Kroger also argues that her conduct does not meet the Burlington / Faragher requirements because she filed a union grievance instead of following Kroger's sexual harassment policy. The Fifth Circuit finds that filing a union grievance is sufficient.
3. Retaliation
   1. Watts' retaliation claim fails because the changing of Watts' schedule was not an "adverse employment action" and her schedule was changed for the first time on July 17, 1994 -- but she did not specifically complain of sexual harassment until two days later. Therefore, there was a lack of causation.
4. The Fifth Circuit affirms in part and reverses in part.
5. Click here to see actual case.