Other Areas of Law

Editor:
Rex P. Fennessey, Esquire

Supervisory employee who did not oversee or actively participate in alleged discrimination cannot be personally liable as an employer under the MHRA.  Supervisory employee is “supervisor” for purposes of MHRA if employee believed he/she was supervisory regardless of whether he/she actually was. Charge of discrimination for sexual harassment does not exhaust administrative remedies for constructive discharge claim if it contains no mention that complainant has quit and does not describe the actions of non-harrassing employees which caused intolerable conditions. Chukayla Reed v. McDonalds Corp., No. 95895 (Mo. App. E.D., January 24, 2012), Norton, G.

Chuckayla Reed (“Reed”) worked as a crew member at Rich House, Inc.’s (“Franchisee”) McDonald’s franchise. Kevin Emanuel (“Emanuel”), an assistant manager to whom Reed answered, made sexual remarks to Reed, sent her sexually suggestive texts, and ultimately coerced her into having intercourse. Approximately two months later, Reed reported the incident to Franchisee, which immediately suspended Emanuel. Despite his suspension, Emanuel visited the restaurant on several occasions while Reed was working, and in the days following Reed’s report, rumors and questions by co-workers made Reed uncomfortable. However, Reed did not report any such problems until January of 2006, when she quit working for Franchisee. (The foregoing is based on the Court’s recitation of the facts in the light most favorable to Reed.)

Reed filed a charge of discrimination with the Missouri Commission on Human Rights (“MCHR”) on November 10, 2005, and amended charges later that month and in May, 2007. However, none of the charges mentioned what occurred after Reed made her report to Franchisee.

In August 2007, Reed filed suit against Franchisee and Shannon Davis (“Davis”) – whose position with Franchisee is ambiguous – for sexual harassment and constructive discharge in violation of the Missouri Human Rights Act, Chapter 213. Franchisee and Davis both moved for summary judgment, which the trial court granted. Reed appealed.

Held: Affirmed in part, reversed in part and remanded.
Reed argued that the trial court erred in dismissing Davis, because Davis was an “employer” for purposes of the MHRA, and may therefore be individually liable. Distinguishing several recent appellate decisions, the court held that because Davis did not oversee or actively participate in the alleged sexual harassment giving rise to the action, he could not be individually liable under the MHRA. 

Franchisee’s position at summary judgment and on appeal was based on its characterization of Emanuel and Davis as co-workers, and that Emanuel was not Reed’s supervisor. Because the harassment was between co-workers, Franchisee argued that it could avoid liability under the MHRA because Reed failed to establish that it failed to take “prompt and effective remedial action” on learning of Emanuel’s conduct. The court held that Reed had no such burden because Emanuel was her “supervisor” under the MHRA. It cited 8 C.S.R. 60-3.040(17)(D), which extends vicarious liability of an employer to a “supervisor who the employee reasonably believes has the ability to significantly influence employment decisions affecting him or her even if the harasser is outside the employee’s chain of command.”  Because it found that Reed believed that Emanuel was a supervisor, Emanuel was a supervisor for purposes of the MHRA.

Franchisee argued that it was nonetheless entitled to the affirmative defense in 8 C.S.R. 60-3.040(17)(D)(1) that it exercised reasonable care to prevent and correct promptly any sexual harassing behavior, and that Reed failed to take advantage of such opportunities. The court found genuine issues of fact to such this defense because Reed stated that “she did not recall that Franchisee’s sexual harassment policies were explained to her,” because Franchisee allowed Emanuel to return to work on days Reed was working, and because it allowed other employees to know of Reed’s sexual encounter with Emanuel.

Finally, Reed argued that she had properly exhausted her administrative remedies for her constructive discharge claim because her complaints of harassment by Emanuel were “like or reasonably related to the allegations contained in the charge.”  The court disagreed, noting that none of her MCHR complaints mentioned any actions after her report to Franchisee, and that none mentioned the fact that she was no longer employed by Franchisee. It held that, under such circumstances, her sexual harassment complaints were not reasonably related to the allegations in the charge, and a reasonable investigation would not have uncovered or inquired into the constructive discharge claims.