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Judy Greenwald

Woman's workplace race, sex harassment case reinstated on appeal

April 30, 2014 - 2:48pm


A divided appeals court has reinstated hostile work environment claims filed by a customer service representative at a tile company, who was allegedly subjected by a salesman from another firm to three years of unabated racial and sexual harassment that included bragging about his sexual exploits.

Lori Freeman, who is black, was a customer service representative in the Raleigh, North Carolina facility of Dallas-based Dal-Tile Corp. which manufactures, distributes and markets ceramic tile and natural stone products, according to Tuesday's ruling by the 4th U.S. Circuit Court of Appeals in Richmond, Virginia in Lori Freeman v. Dal-Tile Corp. et al.

An independent sales representative who worked with her company, Timothy Koester, frequently used offensive words for women, discussed his sexual encounters, showed inappropriate photos to Freeman and others, made lewd comments, and called Freeman a racially charged term, among other offensive behaviors, said the ruling.

In response to Ms. Freeman's complaints, the company initially promised Mr. Koester would be permanently banned from the facility, but then lifted the ban and instead prohibited Mr. Koester from communicating with Ms. Freeman. He was allowed on the premises but had to coordinate all on-site meetings with a supervisor.

Ms. Freeman was so upset about the prospect of dealing with Mr. Koester that in September, 2009 she took a medical leave of absence during which she was treated for depression and anxiety, said the ruling.

She returned to work in November, 2009, and in December, 2009 said she was resigning from her position. She later testified it was because she was “constantly worried she would encounter Koester at work,” according to the ruling.

Ms. Freeman filed suit in federal district court in Raleigh, N.C., on charges of racial and sexual hostile work environment, constructive discharge and common law obstruction of justice, which was related to the destruction of emails.

The federal district court in Raleigh dismissed all the charges stating Ms. Freeman had not presented sufficient evidence to create “genuine dispute of material fact” as to whether the harassment was objectively severe or pervasive.

The appellate panel reinstated the hostile work environment claims in a 2-1 ruling. “The record is replete with evidence of frequent abusive behavior by Koester during Freeman's tenure with the company,” said the ruling.

“We believe a reasonable fact-finder could find there was an objectively hostile work environment based on both race and sex and that Dal-Tile knew or should have known of the harassment and failed to adequately respond.”

The appeals court, however, upheld dismissal of the constructive discharge and obstruction claims. Ms. Freeman “did not present sufficient evidence to create a question of fact to whether Dal-Tile deliberately attempted to induce her to quit, nor that her working conditions at the time she resigned were objectively intolerable,” said the ruling.

The court also said that Ms. Freeman “presented no evidence that Dal-Tile destroyed emails with the intent to hinder the litigation. Rather, they were destroyed pursuant to Dal-Tile's email retention policy.”

The case was remanded to the federal district court in Raleigh on the sexual and racial hostile work environment claims.

A dissenting opinion by Judge Paul V. Niemeyer with respect to reinstatement of the hostile work claims said the majority ruling extends the scope of Title VIII of the Civil Rights Act of 1964 “well beyond what the Supreme Court has so far recognized.”

 



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