Employee’s Personal Notes Lead to Trial

By Lindsay H.S. Hesketh

A correctional officer will be going to trial against her former employer in the District of Arizona on hostile work environment claims.  The plaintiff alleged multiple instances of harassment, including being the target of crude comments, having to listen to sexually explicit stories, and being sexually assaulted in her car by a coworker.  The plaintiff complained to her supervisors, but her employer did not respond in accordance with its policies. During a work investigation on a different issue, her employer found the plaintiff’s handwritten notes documenting the alleged harassment.

While the defendant won summary judgment on the plaintiff’s retaliation claim, the Court denied summary judgment on the hostile work environment claim.  The defendant had argued that the plaintiff’s case for hostile work environment lacked a key element—the plaintiff’s subjective belief that the alleged harassment was offensive.  The defendant pointed out that the plaintiff had included only one instance of alleged harassment in her personal notes, an incident the plaintiff later claimed “did not even matter.”  Despite the defendant’s argument, the Court concluded that a reasonable jury could also find that plaintiff’s contemporaneous notes evidenced that she had found the conduct “disturbing” enough to keep notes.  Thus, the claim could not be resolved without a trial.

Based on the facts of this case, an employee’s contemporaneous notes of workplace events could provide evidence that conduct is subjectively “disturbing” or offensive.  On the other hand, the significance of notes may become diluted if employees routinely take them. Notes or not, though, employers should follow up on employee complaints about alleged misconduct. Having and following proper policies can provide employers with a separate defense against these types of claims.

Hogan v. CoreCivic of Tenn. LLC, No. CV-17-03752-PHX-DLR (D. Ariz. May 8, 2019).