Recently, in Federal USDC for the W.D. of Kentucky, a reverse discrimination case was brought. The Federal Judge in that case granted summary judgment in that case in essence dismissing it. The case was brought by a Ms. Pusey who claimed that UPS violated her civil rights.
This case involved allegations of co-worker harassment and claims for hostile work environment based on sex and race discrimination under Kentucky Civil Rights Act (KCRA). Ms. Pusey is white and had been employed by UPS for 20 years. Mr. Carter is African-American who had worked for UPS for approximately 6 years. In 2005, the two workers were in a dispute over a work computer. It was not a major fight, but Ms. Pusey claimed it marked the beginning of a campaign by Mr. Carter to harass and intimidate her. For example, Ms. Pusey claims that on September 16, 2005, Mr. Carter passed by her elbowing her in her left breast, and that the same day he tried to trip her. She reported this to her supervisor. For this, Mr. Carter was suspended for 30 days, without pay.
Then on November 23, 2005, Mr. Carter allegedly told Ms. Pusey that it’s good to be black man. She reported this to her supervisor who then spoke to Mr. Carter and instructed him to stay away from Ms. Pusey. Ms. Pusey alleges that for the next 4 months, Mr. Carter harassed her approximately 12 to 15 times. He would make gestures towards her and noises. She finally again reported this to her supervisors. They sent Mr. Carter a letter informing him to stop and tried to schedule the two employees on different shifts and that Mr. Carter was to remain 50 feet from Ms. Pusey.
Ms. Pusey claims Mr. Carter violated the 50 feet rule at least 10 to 12 times from February 2006 to December 2007. She reported these violations and again management spoke to Mr. Carter. Ms. Pusey alleged that liability exists on the part of UPS for the creation of a hostile work environment based on sex and raced discrimination under KCRA. Ms. Pusey alleges that she was harassed by Mr. Carter based on her sex and race in violation of KCRA.
The court stated that to establish a prima facie case of a hostile work environment based on sex or race, a plaintiff must show that: 1) she is a member of a protected class, 2) she was subjected to unwelcome sexual or racial harassment, 3) the harassment was based on her sex or race, 4) the harassment was severe or pervasive, and 5) the employer is vicariously liable. UPS for arguments sake conceded many of the above points, expect they said that Ms. Pusey could not show she was harassed based on her sex or race. And the Court agreed, that Ms. Pusey failed to show that but for the fact that she is Caucasian and/or a woman, Mr. Carter would not have harassed her. By Ms. Pusey’s own admission, none of the comments made were sexual in nature and the elbowing of her breast was not in a sexual nature. Further Ms. Pusey admits that Mr. Carter never made overtly sexist remarks or threats to her. The Court held that ‘a trier of fact cannot infer that harassment emanated from an anti-woman bias merely because a man directed that harassment toward a woman.’ There was no evidence that Mr. Carter’s actions towards Ms. Pusey were nothing more than personal. And there is no evidence that any of the harassment toward Ms. Pusey were because of a bias towards Caucasian people. (See Pusey v. UPS, Inc., 2009 WL 1542714 (W.D. Ky.))
Thus, this case illustrates how one may think they are being harassed by a co-worker and how that harassment feels like discrimination, but under the law it may not be. That it may be no more than one co-worker hating another co-worker and in this case, there was nothing illegal about it.
If you have been involved in a sexual harassment hostile work environment case that you would like to find out the answers to, please call and speak to sexual harassment lawyer Andrew S. Alitowski at 888-ASK-ANDREW (275-2637). We are available 24 hours a day, 7 days a week.
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