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Deli worker’s hostile work environment case reinstated


A federal appeals court has overturned a lower court ruling and reinstated a hostile work environment case filed by a supermarket deli worker who said a fellow worker allegedly stared at her, stood within one or two feet of her, followed her around and held her waist.

Avery Simmons, who had worked at a Haggen Food and Pharmacy in Olympia, Washington, operated by Pleasanton, California-based Safeway Inc., charged violations of Title VII of the Civil Rights Act of 1964 and state law, according to Wednesday’s ruling by the 9th U.S. Circuit Court of Appeals in San Francisco in Avery Simmons v. Safeway Inc., DBA Haggen Food and Pharmacy and Albertsons Cos. LLC.

A three-judge appeals court panel overturned a lower court ruling and reinstated Ms. Simmons’ hostile work environment and retaliation claims and her state law claim for wrongful discharge in violation of public policy.

The U.S. District Court in Tacoma, Washington, erred “in holding that no reasonable jury could conclude” that the employee’s conduct was sufficiently “severe or pervasive” and that Haggen had failed to take “prompt and effective remedial action,” said the ruling by a unanimous three-judge appeals court panel.

Whether the employee’s conduct was based on sex “is a question of fact because (the employee) treated men and women differently,” the ruling said.

“He subjected Simmons to treatment to which he did not subject men: standing within one to two feet of her, following her around, and holding her waist,” it said. “No male Haggen employee has alleged the same.”

Furthermore, the evidence here suggests that (the employee’s) staring affected women differently than it affected men: it made Simmons and at least one other female co-worker very uncomfortable, whereas the male store manager said he appreciated the staring.”

The employee’s conduct was also more than just simple teasing or offhand comments, the ruling said. He “stared and stood uncomfortably close during each of the 17 shifts she worked with Simmons over a two-month period” and allegedly began following her into small, confined areas, and held her waist for 30 seconds.

A “reasonable jury could find that the cumulative effect of (the employee’s) repeated conduct, plus the one time he held her waist, was so severe or pervasive as to alter the conditions of employment.”

The ruling said the store only counseled the employee about his staring and “reasonable minds could disagree” over whether it expressed strong disapproval of even this conduct.

The case was remanded for further proceedings.

Ms. Simmons’ attorney, Aaron V. Rocke of Rocke Law Group PLLC in Seattle, issued a statement that said in part, “The response to employees saying ‘me too’ should be to investigate the facts. Had this employer investigated, it would have uncovered another young woman with the same complaint about the same person and prevented escalating behavior.” The 9th Circuit opinion “was concise. We are happy with the result and look forward to a jury trial on the merits. “

Safeway’s attorneys did not respond to a request for comment.






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