The 8th Circuit Court of Appeals (which hears Minnesota cases) has rejected an employee’s claim that she was unlawfully harassed because, among other things, management rolled their eyes at her and acted exasperated when she walked by.
As the undisputed masters of the exasperated eye roll, teenagers everywhere will feel validated by this ruling if they ever stop texting and looking at their phones long enough to read it.
Almost 15 Years of Accommodation
Wal-Mart employee Kathy Kelleher was diagnosed with Multiple Sclerosis (MS) in 1997, resulting in her receiving a series of job accommodations over the ensuing years. In June 2011, Kelleher requested yet another accommodation accompanied by a doctor’s note listing various lifting, bending, walking and ladder-climbing restrictions.
The company determined that they could not accommodate those restrictions and invited Kelliher to take FMLA or personal leave, and to apply for open positions within her work restrictions. Her store manager, however, went the extra mile and concluded that Kelliher could handle the overnight cashier position. The cashier job is somewhat less strenuous and offered a $.20/hour raise.
Employee Still Grumbles
Kelleher worried that the job might be too strenuous, however, and she was afraid that customers would make comments about her. Nevertheless she took the job, claiming later that she felt pressured to do so because the company had no other options for her.
Thereafter, she claimed she was retaliated against because she was rated as a “solid performer” on her performance evaluation when she had earned an “exceeds expectations” rating in the past. She also complained about receiving a slightly lower raise than she had in previous years. Saving the “best” for last, Kelliher claimed that she had been harassed because she had to work alone, she was constantly being asked if her work was completed, and managers would roll their eyes and act exasperated when they interacted with her.
Appeals Court Shrugs Off Claims
The Eighth Circuit Court of Appeals rejected these claims (and probably rolled their eyes when doing so). For one thing, retaliation claims require proof of an adverse action, and a poor review does not rise to that level since there is no tangible detriment tot he employee. If there is a change in pay that accompanies such a review, a court might feel differently but even then the employee would still have to show that the company’s stated reasons for those reviews were pretextual for an illegal motive. Kelliher failed to convince the court that Wal-Mart’s explanation – diminished job performance – was covering up an impermissible rationale. Therefore, the performance reviews were legitimate and so too were the smaller raises based upon them.
The Court also gave a thumbs down to the harassment claim, noting that “simple teasing, offhand comments, and isolated incidents (unless extremely serious)” do not meet the standard of behavior that is “sufficiently ‘severe or pervasive’ to affect a term, condition, or privilege of the plaintiff’s employment.” Occasional “looks” and eye rolls directed toward Kelliher may have been annoying or unkind, but they did not alter her working conditions, nor were they sufficiently frequent, severe or threatening to create an illegally hostile work environment. Therefore, case dismissed.
Bottom Line
People seem to be more sensitive these days and feelings seem to get hurt much more easily than before. It is good to know that the courts are still holding the line against allowing small hurts and perceived slights to become legitimate catalysts for lawsuits.