In March of 2009, the United States Eastern District Court in Kentucky decided a case which involved a hostile work environment sexual harassment matter. In Landers v. CHLN, Inc., 2009 WL 803777 (E.D.Ky.), the Plaintiff, Ms. Landers was working for the defendant when she claims some of the employees and supervisors sexually harassed her. Plaintiff began working for defendant as a bartender in October of 2005. Id. In April of 2006, an Assistant Manager allegedly stated to her regarding some whip cream “Only if I can spray it on and lick it off as a whip cream bikini.” Id. This Assistant Manager also allegedly hugged her 5 times inappropriately. Id. Plaintiff also alleges other staff members said things like “Oh you’re so cute” and another employee gave his phone number to her with a note that said “for a good time, call…” Id. She did not complain to her supervisors about all of these. Id. Plaintiff filed a lawsuit with claims of hostile work environment, sexual harassment, retaliation, discrimination based on personal association, and intentional infliction of emotional distress. Id.
The Court first looked at her claim for intentional infliction of emotional distress. In that Plaintiff filed a statutory claim of discrimination under the Kentucky Civil Rights Act her common law claim for intentional infliction of emotional distress is subsumed by the statutory one and thus her independent claim was dismissed. Id. Next, as to Plaintiff’s Title VII claim, Plaintiff never received a Right to Sue Notice. Accordingly, Plaintiff has failed to exhaust all her administrative remedies. Id. Thus, this claim was dismissed. Id.
The Kentucky Court next reviewed Plaintiff’s discrimination claim under the Kentucky Civil Rights Act (KCRA). “In order to assert a prima facie claim of sexual harassment based on hostile work environment, the plaintiff must show by a preponderance of the evidence “… 1) that she was a member of a protected class, 2) that she was subjected to unwelcome sexual harassment; 3) that the harassment was based on sex; 4) that the harassment unreasonably interfered with her work performance by creating a hostile, offensive or intimidating work environment; and 5) that there is a basis for employer liability.” (cite omitted). Id. In order for there to be a hostile work environment, the conduct must be severe or pervasive and must unreasonably interfere with an employee’s performance. Id. In the instant case, the Court held that the incidents were not severe or pervasive and in light of the fact that the Plaintiff did not complain to her supervisors regarding the harassment, that it did not unreasonably interfere with her work. Id.
Finally, as to Plaintiff’s Kentucky claim for retaliatory discharge, the Court held that this claim was not valid. “To establish a prima facie case of retaliation, Landers must establish that: 1) she engaged in protected activity; 2) the Defendant knew of the exercise of her civil rights; 3) subsequently, the Defendant took an employment action adverse to the Plaintiff; and 4) the adverse employment action was a result of her exercise of the protected activity.” (cite omitted). Id. In this case, Plaintiff admittedly “never complained, asked for company assistance, or took any other action to protect herself from what she now characterizes as inappropriate conduct and to put the company on notice so that it could take corrective or preventative action.” Id. Thus, the Defendant was entitled to summary judgment. Id.
If you have been the subject of hostile work environment sexual harassment, please call and speak to a Kentucky hostile work environment sexual harassment employment lawyer at the Law Offices of Andrew S. Alitowski at 888-ASK-ANDREW (275-2637) or contact us online. We are available 24 hours a day, 7 days a week.
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