In Schlosser v. VRHabilis, LLC, No. 23-6019, 2024 WL 3934559 (6th Cir. August 26, 2024), the court upheld a jury verdict in plaintiff’s favor on their hostile work environment sexual harassment claim under Title VII of the Civil Rights Act of 1964.
From the decision:
Based on the evidence presented at trial, the jury could reasonably review the totality of the circumstances and determine that Schlosser was subjected to severe or pervasive harassment based on her gender. Cf. Williams, 187 F.3d at 564 (“[A] work environment viewed as a whole may satisfy the legal definition of an abusive work environment, for purposes of a hostile environment claim, even though no single episode crosses the Title VII threshold.”). On appeal, VRH ignores these requirements and separately attacks each incident of sexual hostility, rather than recognizing the collective import of the incidents over the course of a short ten-week period, which robs the incidents of their cumulative effect. But viewing the evidence in the aggregate, as this Court must, the jury could reasonably determine that VRH frequently ostracized Schlosser by making her perform tests while the men were not similarly questioned about their abilities, as well as by singling her out as the lone employee prohibited from both diving and from driving the company vehicle. Cf. Waldo, 726 F.3d at 820 (finding that a jury could have reasonably believed that the plaintiff demonstrated a hostile work environment where a female employee’s male co-workers ostracized and isolated her).
In addition, the jury heard evidence that Schlosser’s immediate supervisor verbally harassed her on a daily basis for several weeks, including by stating multiple times that she was not a “real diver.” See, e.g., Trial Tr. Vol. I, R. 89, Page ID #3155. Sanders’ daily harassment, coupled with his clear desire to remove Schlosser from his team, complaining that she “bitched about everything,” directly affected the day-to-day conditions of Schlosser’s work environment. Even after Schlosser moved teams—albeit at Sanders’ request—she continued to weather harsh verbal assaults by a co-worker, which often included being called “a bitch.” During one of these incidents, Brouse even tried to physically push Schlosser. Additionally, throughout her time at VRH, Schlosser was consistently fielding threats that she would be fired and insults that she was not qualified to perform her job. Not only did Brouse punctuate his verbal assault by stating, “they [will] fire you before they fire me,” but Schlosser testified that this type of threat was common from her co-workers and her superiors. Id. at Page ID #3176, 3189.
Viewed in the light most favorable to Schlosser, not a day of her ten weeks at VRH passed without some type of sexual harassment or ostracization. Accordingly, the totality of the circumstances could reasonably indicate that Schlosser suffered pervasive harassment that altered her job environment, conditions, and performance. Even though VRH cites several cases from this Court to support the proposition that the harassment Schlosser endured was not “severe or pervasive” enough to subject VRH to liability, these cited cases function to illustrate exactly how fact-intensive and credibility-orientated this prong of the hostile work environment inquiry is. Context matters for the jury’s evaluation of the severeness or pervasiveness of alleged harassment. Cf. Trepka v. Bd. of Educ., 28 F. App’x 455, 461 (6th Cir. 2002) (finding no hostile work environment where employee presented one instance of a supervisor’s “relatively contentious oral confrontation”); Goller v. Ohio Dep’t of Rehab. & Corr., 285 F. App’x 250, 259 (6th Cir. 2008) (finding no hostile work environment where plaintiff’s supervisor frequently called her “Barbie” and never physically threatened plaintiff); Clark v. United Parcel Serv., Inc., 400 F.3d 341, 351 (6th Cir. 2005) (finding harassment not pervasive enough to constitute a hostile work environment where employee alleged three isolated incidents over a period of two and a half years). The distinguishable facts of these cases do not preclude a reasonable jury from finding for Schlosser on her hostile work environment claim, where the verbal abuse she endured could be reasonably viewed as significantly more aggressive, pervasive, and continuous.
The jury fairly concluded that Schlosser did not endure “simple teasing” or “isolated incidents.” Faragher v. City of Boca Raton, 524 U.S. 775, 778, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). Instead, as the lone female diver, Schlosser faced daily threats to her employment, derogatory comments, verbal harassment, foul language, and constant changes to her pay and position “to which members of the opposite sex were not exposed.” Randolph, 453 F.3d at 734. And this harassment occurred daily throughout a compressed period of ten weeks. For these reasons, a reasonable juror could find that a hostile work environment existed. Cf. Austion v. City of Clarksville, 244 F. App’x 639, 652 (6th Cir. 2007) (admitting that the hostile work environment evidence was “meager,” but holding that “we are not persuaded that a reasonable juror could not find that a hostile work environment existed, especially when the evidence is viewed in the light most favorable to [the plaintiff]”).
The court proceeded to explain that the employer was liable for the harassment, since the jury could reasonably determine that (a) the supervisor’s harassment resulted in a tangible employment action, and (b) plaintiff’s co-worker harassed plaintiff daily (including calling plaintiff a “bitch”), and that the harassment was known of but that no attempt was made “to correct the problem of the sexually harassing behavior.”