The court condemned this employee’s conduct. But it also said it was not bad enough to subject an employer to liability for illegal harassment.
Heather Lopez worked at a Whirlpool facility in Iowa, where she helped to build refrigerators.
She said that in August of 2016, co-worker Brian Penning came up behind her, “putting a hand on [her] shoulder and caressing [her] or talking quietly about something, just violating [her] space in general.”
Lopez said Penning stopped “for a while” when she told him to back off, but she also alleged that he later started doing the same thing again “occasionally.”
According to Lopez, things escalated in April of 2016. She says beginning at that time, “there was some sort of touch involved on his end” whenever the two saw each other. More specifically, she said he would touch her shoulder, arm or back.
She also said that Penning’s groin touched her one time when he stood behind her in a line, and she asserted that he once blew on her finger and called her “baby” while administering first aid to her. She did not report either alleged incident to the Whirlpool’s human resources department.
In the summer of 2016, Penning took on some supervisory duties. During a shift, he assigned Lopez a task she believed she was not qualified to perform. She met with a previous supervisor to discuss the matter, and the previous supervisor encouraged her to bid for a spot on the previous supervisor’s new line.
In mid-August of 2016, Lopez refused to comply with Penning’s instruction to wear personal protective equipment in a stuffy, hot area without a fan.
Written Complaint Is Filed
She then filed her first written complaint, which mentioned three things: being assigned a task she was not qualified to do; having access to a shoulder brace delayed; and being told to work in a stuffy, hot area. The complaint said nothing about alleged harassment by Penning.
Lopez said that five days after she filed the written complaint, Penning “hovered” near her work space and stared at her for an hour. She said he did so again the next day, for 45 minutes and with a “pissy face.”
She then resigned and sued Whirlpool for sex discrimination and retaliation. A lower court ruled for Whirlpool, and Lopez filed an appeal.
The Eighth Circuit affirmed the ruling for Whirlpool. It said Penning’s alleged conduct was not severe or pervasive enough to create an objectively hostile or abusive work environment.
In addition, the appeals court decided that Lopez did not show that Whirlpool knew or should have known of Penning’s alleged harassment and did not take proper remedial action.
Lopez could not show she was constructively discharged because she did not give Whirlpool a reasonable chance to address the issues that concerned her, the court held.
Finally, the court rejected Lopez’s retaliation claim. It said she did not show she opposed a practice made unlawful by Title VII or participated in activity that Title VII protects from retaliation.
The lower court’s ruling was affirmed.
Lopez v. Whirlpool Corp., No. 19-2357, 2021 WL 822200 (8th Cir. 3/4/21).
