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Monday, July 14, 2014

Reasonable Response by Employer Bars Hostile Environment Claim for Manager's Repulsive Behavior

By: Tommy Eden
Rhonda Simpson’s manager first approached her in 2002 at a Florence, Alabama McDonald’s because he said he was struck by Simpson’s Farrah Fawcett likeness. He then suggested that Simpson come see him at Big Lots should she ever need a job. Simpson eventually interviewed with the manager for a cashier position at the store and was hired.

            Simpson later claimed in her deposition that at some point, the manager attempted to kiss her and “he would have kissed her on the lips if she hadn’t turned her cheek for him to kiss her on her cheek.” Simpson also claims that the manager engaged in “the touching of arms, hands, shoulders, you know . . .” and “hugging all the time,” as well as making comments about customers’ “boobs” and “butts” as well as “said ass and tits and that kind of stuff” and also telling stories of his wild sexual exploitations.

            Each time she reported the incident to the Big Lots store manager, who would arrange a meeting and later report that he discussed her concerns with Simpson’s manager. Following these meeting she agreed that the offensive behavior “did slow down for a couple of weeks.”

In 2006, Simpson contacted Big Lots’ employee hotline and made an anonymous tip concerning her manager’s alleged sexual harassment toward her as well as complaints received from other employees concerning his sexual harassment. In response Big Lots sent a district manager to investigate the allegations. Simpson was on leave when he arrived, never met with the investigator and made no effort to contact him to participate in the investigation. Following the district manager’s investigation, Simpson heard that her manager had been written up for the harassment and his behavior stopped for a while.

Simpson claims that some time late she made another complaint to the store manager concerning her manager’s crude behavior to which he asked Simpson if she wanted him to fire her manager. Simpson responded she did not “want anyone to lose their job no matter who you are,” but that she wanted the issue resolved. Again the Big Lots district manager interviewed several store employees concerning these new allegations. Simpson was out on medical leave at the time, but her co-worker called her at home asking what to do with a notebook in which Simpson had detailing the manager’s alleged misconduct.  Simpson told her, “under no circumstances do you give them the notebook.” Instead, Simpson contacted her attorney on behalf of the two employees and Simpson filed her EEOC charge in late August of 2012. Simpson’s manager submitted his resignation in September 2012. Simpson was properly terminated on February 13, 2013, for failure to return to work at the end of leave.

        Subsequently, Simpson filed a complaint in Federal Court for the Northern District of Alabama alleging a Hostile Work Environment claim. District Judge Inge Johnson found on Big Lots’ motion for summary judgment that a genuine issue of material fact exists as to whether the manager’s endless story-telling, references to women’s breasts and butts, and comments about sex and his private parts constituted objectively hostile or abusive behavior, especially if such comments were directed only at women in the office as Simpson alleged.

          However, the Judge also found that the manager’s reprehensible and repulsive behavior, could not overcome Big Lots’ Faragher-Ellerth defense to defeat a hostile environment claim. The Judge noted that Simpson had conceded in her deposition that every time she made a complaint to the store manager, he arranged a meeting with her and later informed her that he had spoken with the offending manager, who was disciplined on three occasions.

     The Judge ruled on July the 8th that Big Lots made a showing that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and that Simpson unreasonably failed to take advantage of any preventive or corrective opportunities it provided. In granting summary judgment in favor of Big Lots on the hostile environment claim, the Judge concluded that the employer had conducted a reasonable investigation in response to Simpson’s allegations, and that investigation is enough to satisfy Big Lots’ responsibility under Title VII. The case is Simpson v. BigLots.

Common Sense Counsel: Having a legally compliant Professional Conduct Policy and Prohibition Against Harassment Policy, annual employee-wide training, prompt and effective investigation of complaints and taking proper remedial actions are keys to good risk reduction. Also using pickup lines as part of your employee recruiting campaign is never recommended.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at and follow on twitter@tommyeden3.