A former Forest River employee will get a second chance to make his claim that the recreational vehicle maker constructively discharged him by refusing to address age-based harassment after a split 7th Circuit Court of Appeals revived the case and sent it back to the Northern Indiana District Court. However, one judge dissented, asserting, “there was not enough ‘constructive’ in the plaintiff’s constructive discharge claim.”
Sam Stamey sued Forest River, a Berkshire Hathaway company based in Elkhart, alleging the company “effectively fired him by subjecting him to unbearable age-based harassment” in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.
Stamey alleges his co-workers were relentless in their verbal insults, calling him “Walmart greeter” and “old b—-,” as well as asking questions like, “What’s up h—? Looks like your dentures are about to fall out.” Also, he claims his co-workers interfered with his ability to work by zip-tying his tools together, screwing his tool cabinet closed then stripping the screw heads and driving screws into the wheels of his wire cart.
Stamey complained to his supervisors and human resources. Sometimes the taunting would abate after these complaints, but never fully stopped and would eventually return to the same level of harassment, according to court documents.
In June 2018, Stamey filed a charge of discrimination with the Equal Employment Opportunity Commission. He alleged his “co-workers have insulted, taunted, tormented [him] on account of the age.” Forest River investigated but concluded “there were not facts to support [Stamey’s] allegations.”
Stamey contended the harassment continued to the point where he was suffering emotionally and physically. On Aug. 10, 2018, Stamey, who was 62 at the time, quit after a supervisor taunted him in front of his co-workers by saying, “Damn, Sam, you still kicking? You’ve got one foot in the grave and the other on a banana peel!”
Mike Brady, Stamey’s supervisor, tried to get him to return to work. Instead, Stamey filed a second discrimination complaint with the EEOC.
When Stamey sued, the Northern Indiana District Court was not convinced. The federal court granted summary judgment to Forest River, finding the name-calling and pranks would not have made a reasonable person quit.
A split 7th Circuit reversed the grant of summary judgment and remanded for trial in Sam Stamey v. Forest River, Inc., 21-1539.
“On this record, a jury could find that the company’s minimal response to Stamey’s complaints was unlikely to change the environment,” Judge Michael Scudder wrote for the majority. “ … A jury could also find that Stamey’s ‘last straw’ reaction of quitting when a manager told him in front of coworkers that he had ‘one food in the grave and the other on a banana peel’ was reasonable. Because a supervisor was not contributing to the harassment and doing so in front of Stamey’s coworkers, a factfinder could conclude that management remained unlikely to intervene to stop the harassment and that any future complaints would simply ‘f[all] on deaf ears.’”
The majority relied on Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781 (7th Cir. 2007) for guidance. There, a female employee claimed her supervisor had made repeated sexist and offensive remarks to her and threatened retaliation if she filed a complaint. The 7th Circuit held that a “reasonable person in Boumehdi’s position would feel she had so no choice but to resign.”
Scudder and Judge Candace Jackson-Akiwumi noted while Boumehdi was subjected to 18 harassing remarks, Stamey estimated he had to endure at least 1,000 age-base taunts in one year. In addition, Stamey had to put up with regular interference with his workspace and tools as well as derogatory comments spray-painted around the plant.
“Again, a jury could see these acts hand-in-glove with the pattern of verbal age-based insults that Stamey endured at Forest River,” Scudder wrote. “If it credits Stamey’s account, a jury could tally of of this evidence and conclude his working conditions were sufficiently egregious to give rise to a constructive discharge.’
However, Judge Michael Brennan dissented, asserting Stamey did not clear the high hurdle his claim set. The worker needed to show the company permitted the harassment which became so intolerable that quitting was the only option, according to Brennan.
“Not only are the requirements rigorous, but this court has never recognized a constructive discharge claim based on age,” Brennan wrote. “To prevail, Stamey must show that he suffered egregious, age-based harassment, and that his attempts to seek relief from the company would have been futile. Stamey fails at both steps.”
Brennan listed several cases of “constructive discharge” where the claim included threats of physical violence. He also found Boumehdi unavailing in that the comments thrown at Stamey, while “vulgar and demeaning” were “more generalized and less personalized,” and there was little to support the claim that the practical jokes were committed with his age in mind.
“Because Stamey never alleged physical threats, and Boumehdi is dissimilar in important respects, Stamey falls short of proving he was constructively discharged. Indeed, this case resembles others in which this court decided that a constructive discharge had not occurred,” Brennan wrote, citing, as an example, Cooper-Schut v. Visteon Auto. Sys., 361 F.3d 421 (7th Cir. 2004). “… (A) constructive discharge claim requires more; specifically, conditions in the workplace must be so unbearable that any reasonable person would feel compelled to leave. On this record, Stamey has not met that threshold.”