Noted legal scholar Chris Berman once stated that “once is an accident, twice is a trend, three times is a problem.” Or something like that.
At any rate, in today’s installment of the consequences of dropping trou at work, we bring you Davenport v. Nissan North America, Inc.There, Joslyne Davenport, a production assistant at a Nissan plant in Mississippi hired through Kelly Services, Inc., accused Fred Tate of exposing himself to her in September or October 2013. Tate was a line leader on Davenport’s shift, however he did not supervise her. Rather, another employee named Aaron Rodgers1 supervised both of them.
In the two months following the incident with Tate, Davenport also alleged that he made sexual references during conversations in the break room and displayed photos of his genitals in the presence of other employees.2 Davenport, however, did not report Tate exposing himself to her until December 2013, after which Nissan investigated and separated her from Tate and Rodgers during their shifts. Ultimately, Davenport resigned and brought a sexual harassment claim against Nissan, Kelly Services and Tate.
The U.S. District Court granted the Motion for Summary Judgment filed by Nissan and Kelly Services, noting a number of deficiencies in Davenport’s claim. First, the Court found that Tate was Davenport’s co-worker, not her supervisor, and that under Vance v. Ball State Univ., Davenport could not show that Defendants were negligent in controlling her working conditions, as required to establish employer liability. The Court based this finding on the absence of evidence establishing that Tate could take tangible employment actions – hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits – against Davenport.
As alternate grounds for its decision, the Court concluded (and Davenport failed to address) that she did not establish that Tate’s one-time exposure of his genitalia was severe or pervasive enough to alter a term or condition of her employment. Davenport also did not respond to Defendants’ evidence that Nissan had investigated her claims and had separated her from Tate and Rodgers, or the two-month gap between the incident and Davenport’s reporting it, which was contrary to a provision in Kelly Services’ handbook concerning operations at Nissan’s plant requiring employees to “immediately report any incidents that violate Kelly or Nissan policies,” and noting that “[a]ny violation of these policies is grounds for termination of employment.” As a result, Davenport could not establish that Defendants knew or should have known of Tate’s harassment and failed to take prompt remedial action.
Nissan and Kelly Services caught a couple of huge breaks in this case. The first was Davenport admitting that her claims were limited to the one time that Tate exposed himself to her and did not involve the other instances of his sexually charged behavior that she claimed occurred. As noted, she also apparently simply failed to respond to two of Defendants’ key arguments concerning her prima facie claim. Nevertheless, this case reiterates the importance of employers clearly and explicitly conveying that employees must promptly report harassment and of conducting prompt, effective investigations if and when harassment is reported.