Labor & Employment Law Daily Wrap Up, DISCRIMINATION—SEXUAL HARASSMENT—D. Kan.: Prior complaint against harassing coworker, lackluster response, bolster employee’s claims, (May 20, 2025)

By Marjorie Johnson, J.D.

That the coworker never physically touched the first complainant was not dispositive since, “to establish notice, the law does not require that plaintiff cite only identical sexual conduct.”

Frito-Lay will face trial on a former employee’s Title VII and Kansas Act Against Discrimination (KAAD) claims alleging the company subjected her to a sexually hostile work environment and retaliation, which ultimately resulted in her constructive discharge, by failing to take appropriate remedial action after she complained that a male coworker—who had recently been the subject of another female employee’s sexual harassment complaint—made explicit sexual remarks and groped her. Denying the employer’s bid for summary judgment, a federal district court held that although she never worked alongside the coworker again, the employer’s refusal to move her to a different area despite having done so in the past allowed ample opportunity for him to continue sexually harassing her (Norris v. Frito-Lay, Inc., No. 5:24-cv-04023-KHV (D. Kan. May 16, 2025)).

The employee began working at the Frito-Lay facility as a regular employee on January 25, 2022, at which time the applicable collective bargaining agreement imposed a probationary period for the first 90 days of her employment. She worked as a picker loader, which involved loading and unloading boxes from trucks.

Coworker’s complaint. On March 7, 2022, a female coworker reported to a supervisor that a male coworker showed her a picture of his penis and told her “I just wanna make sure it’s good enough.” HR became involved and he was suspended pending an investigation. However, the HR manager determined that it was a “he said, she said” situation, and the male coworker only received a documented discussion stating that future violations of policy would result in disciplinary action, including termination.

Harassment of employee. On May 22, the employee was assigned to unload a trailer alongside the same male coworker. He began asking her personal questions and, after he discerned that she had previously worked as an exotic dancer, he asked her intimate questions about her sex life, including her favorite position, whether she was bisexual, and whether she gave private dances or worked parties. She felt scared, tried to change the subject, and worked as quickly as possible so she could leave.

Groping. As she was unloading boxes later in the day, he walked to her side and placed his hand on her mid-thigh all the way up to her “backside.” She immediately dropped her tool, walked away, and told a coworker what had happened before leaving for the day.

HR complaint. She took a sick day the next day, and when she returned on May 24, reported the incident to the HR manager, who told her they would investigate. Afterwards, she asked her supervisors to be reassigned away from the harasser. They responded, “Is it really that big of a deal?” Another coworker stepped in and agreed to switch positions with her.

Suspension only. The employer suspended the male coworker for five days pending an investigation. On June 7, the HR manager advised the employee that he was unable to substantiate her claim, and that HR was closing the matter. At some point he also informed her that the coworker would be returning and asked if she was okay, to which she replied, “No, I’m not okay. You continue to keep me in a hazardous work environment.” She also asked to be placed on another shift or moved to another area (as had been done in the past for other reasons), but he responded that he could not move her outside of the CBA’s bidding process, which she unsuccessfully tried to utilize.

Alleged taunting. She did not work with the coworker again, but when she saw him in the hallway, he looked at her, smiled, and laughed. She then took more time off work, during which time she again asked the HR manager to be moved to a department away from the coworker, but he told her that she would have to be the successful bidder under the CBA. She then resigned, and he told her that he would be “more than happy” to accept her resignation.

Muldrow and HWE claims. In Muldrow v. City of St. Louis, the U.S. Supreme Court held that employees who bring suit under Title VII’s discrimination prong need not show that harm was “significant” but instead need only show “some harm” or “some disadvantageous change” to an identifiable term or condition of employment. Since the Tenth Circuit had not yet analyzed whether Muldrow altered the elements of hostile work environment (HWE) claims, the court considered the employee’s claim under both pre-Muldrow and Muldrow standards.

Under the pre-Muldrow standard, the two incidents of harassment by the coworker—his asking her inappropriate questions and placing his hand on her mid-thigh and backside, followed by his allegedly mocking or leering at her in the hallway—could not be reasonably perceived as pervasive harassment. However, a reasonable jury could find that given the “particularly threatening or humiliating circumstances,” the harassment was sufficiently severe to create an objectively HWE. Her claim also advanced under the Muldrow standard since the record suggested that the harassment impacted her job schedule and performance, caused her to avoid one-on-one contact with him, and made her feel scared and uncomfortable in her workplace.

Notice. A triable issue existed as to whether the prior harassment complaint against the coworker placed the employer on notice of his conduct, and thus could be held liable for the employee’s harassment, considering the close temporal proximity between the complaints. The employee also presented evidence on the extent, seriousness, and similarity of the misconduct—both instances involved sexual comments and advances by the harasser. The fact that he never physically touched the earlier complainant was not dispositive to establish notice as the law does not require that the employee cite only identical sexual conduct.

Appropriate remedial action. A jury would also need to decide whether the employer took prompt and effective remedial action. Just as with the first complaint against the coworker, he was promptly suspended. However, the record did not show if he received any coaching or discipline the first time, or even after his second suspension despite repeated similar allegations. The employer also took no steps to place him or the employee in different work areas, despite evidence that it had moved the employee elsewhere on previous occasions. Though the coworker made no further advances toward the employee, it allowed ample opportunity for him to do so.

Retaliatory adverse action. Her retaliation claims also advanced to trial since the employer’s failure to reassign her required that she work with a serial harasser and exacerbated the hostile work environment—conduct that would easily dissuade a reasonable employee from making or supporting a charge of discrimination. In addition, a causal connection could be inferred from the close temporal proximity between events.

Constructive discharge. Finally, reviewing the totality of the circumstances, a reasonable jury could conclude that the employee’s working conditions were so intolerable that she had no choice but to quit. Despite having previously moved her to a different area, the employer took no action to separate her from her harasser despite her repeated requests. Though the coworker made no further advances toward her, and she only saw him once more, the employer provided ample opportunity for the two to interact and refused to take prompt and effective remedial action. “On this record, a genuine issue of material fact remains whether plaintiff’s resignation was indeed voluntary.”

The case is No. 5:24-cv-04023-KHV.

Judge: Vratil, K.

Attorneys: Bruce Alan Brumley (Brumley Law Office) for Tiffany Reneae Norris. Abbey Lee (Littler Mendelson) for Frito-Lay, Inc.

Companies: Frito-Lay, Inc.

Cases: SexualHarassment SexDiscrimination Discrimination Discharge Retaliation KansasNews