Walmart sexual harassment case sent back to Opelousas district court

The Third Circuit Court has sent back to 27th District Court in Opelousas a sexual harassment claim against Walmart Stores East and ordered it to hear the case.
Mayra Artigue claims she was fired after refusing to return to work following sexual harassment because she claimed she was entitled to special leave considering the circumstances.
She sued Walmart and Titus Joubert, who she accuses of the harassment at the firm’s Distribution Center.
She asserted she had been inappropriately harassed verbally and physically before the October, 2008 incident and claims Joubert was later fired for a similar problem with another female employee.
Artigue went on leave and remained on it until Nov., 2009 when she was advised her leave had expired and she needed to return to work or seek an extension for special circumstances.
She did not file the extension paperwork and was fired on Dec. 7, 2009.
Walmart claimed there was no basis for liability.
After a hearing, Judge James Doherty granted the company’s motion for summary judgment (dismissal), saying there was essentially no dispute of facts and that Artigue’s allegations of harassment “did not constitute the type of severe or pervasive conduct required to establish a hostile work environment sexual harassment claim.”
Artigue disagreed and in her appeal argued Walmart’s harassment policy was not enforced and a hositle work environment did exist.
The three-judge panel (Sylvia R. Cooks, Marc T. Amy and Billy Howard Ezell) found that Wal-Mart argues “a single one- to two-second-long alleged act of inappropriate touching, two mild comments, a ‘smirk,’ an ‘almost’ touching of the stomach and a ‘kind of’ touching of the corner of the knee with a finger or pen over a two month period” do not rise to the level of severity or pervasiveness required to support a claim of hostile work environment sexual harassment.
“The trial court weighed Plaintiff’s allegations and agreed with Wal-Mart that it was not severe or pervasive. We find the trial court’s weighing of the allegations and factual determinations are inappropriate at the summary judgment stage of the proceedings.
“Moreover, we find there is, at a minimum a genuine issue of material fact as to whether the allegations set forth by Plaintiff are sufficient to establish the harassment by Joubert was so severe or pervasive as to change the terms and conditions of Plaintiff’s employment.
“We find woefully inadequate Wal-Mart’s characterization of the alleged incident on October 4, 2008, as “a single one- to two- second long alleged act of inappropriate touching.”
“This alleged incident as described by Plaintiff raises questions regarding the seriousness of the incident and the underlying intent as to whether the incident met the reasonable definition of the word severe.
“In this sense, genuine issues of material fact remain. Moreover, the court in Faragher (an earlier case) clearly set forth that isolated incidents, if extremely serious, can amount to discriminatory changes in the “terms and conditions of employment.
“A sexual assault of an employee by her supervisor may reasonably be considered an extremely serious incident.”
The appeal ruling also notes , “the trier of fact could reasonably view the October 4, 2008 incident as severe, physically threatening or humiliating, and conclude it would interfere with the employee’s work performance. Therefore, we find the trial court’s factual determination that Plaintiff’s allegations did not rise to the level of severe or pervasive was inappropriate.”