Harassment Reporting Delay Doesn't Kill Lawsuit

March 14, 2003 (PLANSPONSOR.com) - Christine Hawk may have put off formally complaining about her boss's sexual harassment for nine months, but she can still pursue a federal court harassment suit against her former employer.

US District Judge Berle Schiller of the US District Court for the Eastern District of Pennsylvania rejected a request by lawyers forAmeriCold Logistics, LLC, an Atlanta-based food-distribution company, to throw out Hawk’s case because she hadn’t shown that any harassment was “severe” or “pervasive,” according to a Legal Intelligencer report.

Schiller pointed out that Hawk alleges that the sexual harassment stretched over an eight-month period, occurring “every day,” and sometimes culminating in severe incidents.“Hawk was daily subject to unwanted communication of a sexual nature, both at work and at home,” Schiller wrote. “Surely, such harassment must be viewed as severe and pervasive.”

Hawk claims that she delayed complaining because she is a single mother and feared losing her job. Although Hawk was “far from prompt,” Schiller found, Hawk’s explanation was enough evidence to allow a jury to find that she “did not unreasonably fail to take advantage of any preventive or corrective opportunities provided by the employer.”

Case Background

Court documents presented this background about the dispute:

Hawk began working for Americold as a temporary employee in June 1999, making pallets. By the end of that year, she had been promoted to a permanent post as a forklift driver. Hawk claimed that early on in her employment, she developed a friendship with one of her supervisors, Jack Bambary, but that he soon began to harass her.

During her first month, Hawk claims, she and Bambary went to see Hawk’s friend perform exotic dance at a club, and Bambary told her that she would “look better up there dancing,” to which Hawk replied that she was not a dancer. After that, Hawk said, Bambary began paging her every day and calling her at home — even after she said she wanted him not to.Bambary allegedly went to Hawk’s home and began to recite his affections for her and refused to leave despite her requests that he do so.

At work, the suit says, Bambary frequently called Hawk in to the dock office when she worked the Saturday shift. Other workers testified that Bambary made a practice of interrupting conversations that Hawk had with male co-workers. Hawk claims that she was forced to ward off constant sexual advances. Bambary sent suggestive messages on her forklift computer, Hawk said in court documents, and frequently spoke to her about her having sex with him.

In August 1999, Hawk told Eric Wilmont, a supervisor, that someone was harassing her but that she did not wish to discuss the matter further because she could handle it herself, court documents say.

Hawk Files a Complaint

In March 2000, Hawk made a formal complaint to Americold’s human resources department. Within days, Hawk was transferred to another facility so that she would not have to work with Bambary during the investigation. When the investigation of her complaint was done, Americold concluded that Bambary had been “unprofessional at times” but had not sexually harassed Hawk, court documents say. Hawk was told that Bambary was to be disciplined and instructed not to have contact with her. To avoid their working together, Bambary’s shift was to be changed.

Hawk agreed to return to her original job but stayed only for one day because she had contact with Bambary and then resigned. Bambary was later fired for his alleged comments to Hawk on returning to her first job.

Schiller also ruled that a jury must decide whether Hawk’s resignation was a “forced” one prompted by intolerable working conditions. The company argued she “voluntarily” made the decision to resign , but Schiller disagreed, saying the evidence that Hawk encountered Bambary when she returned to work could be enough for a jury to label the resignation a “constructive discharge.”

The case is Haw k v. Americold Logistics.