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Employers Must Have Reasonable Time to Investigate

Heather Lopez worked for Whirlpool making refrigerators. Lopez alleged that Brian Penning, a co-worker, sexually harassed her. Lopez saw Penning touch a female co-worker. This female co-worker stated she was not offended. Penning then started approaching Lopez from behind, touching her shoulder, talking quietly in her ear, or “just violating [her] space in general.” Lopez asked him to back off. He stopped for a bit but then resumed. Lopez continued to see him touching her co-worker. When Penning continued invading Lopez’s personal space, it happened “occasionally, not like every single day.” After Lopez won a Whirlpool weight-loss contest, she noticed Penning touching her more frequently on her shoulder, arm, or back. On one occasion, his groin touched her when he stood behind her in line. Lopez did not report these incidents specifically. However, Lopez asserted she did tell her supervisor that “there had been physical interaction” from Penning. Penning’s conduct did get better.  Lopez began having some workplace issues when Whirlpool moved her to a new position. In meeting with human resources about those issues, Lopez wrote down her complaints but did not mention the conduct by Penning. She alleged that she did share how Penning made her feel verbally. For the next couple of days, Penning continued to make Lopez feel uncomfortable. Lopez resigned four days after the meeting because she did not feel safe there anymore.

The Eighth Circuit Court of Appeals considered the district court’s dismissal of Lopez’s case. Lopez failed to establish that Penning’s conduct was sufficiently severe or pervasive to create an objectively hostile or abusive work environment. The court asserted that while Penning’s conduct was inappropriate, it was not the frequent unwelcome touching required to meet the legal standard. Moreover, Whirlpool could not be held liable for the conduct. Penning was not a supervisor, so Lopez had to establish that Whirlpool knew about the conduct and failed to take immediate and appropriate corrective action. Lopez admitted in her testimony that the behavior improved after she mentioned it to her supervisor. The next time Lopez shared that Penning’s conduct was an issue, she resigned four days later. Lopez did not leave Whirlpool a reasonable amount of time to respond to her complaint.