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A federal judge has dismissed a claim of religious harassment brought by a “devout Christian” who says she was singled out by co-workers for teasing because of her attitudes about sex and that management did nothing to stop the teasing when she complained. The ruling stems from the judge’s finding that the plaintiff never alleged that she told her employers of the religious nature of the alleged discrimination. In his eight-page opinion in Mullen v. Toppers Salon and Health Spa Inc., Senior U.S. District Judge Edmund V. Ludwig also dismissed Kathleen Mullen’s claim of hostile environment sexual harassment after finding that no such claim was made in her original complaint to the Equal Employment Opportunity Commission. But Ludwig refused to dismiss a retaliation claim, finding that while the “retaliation” box was not checked on the EEOC complaint, the facts of the complaint were specific enough to put Topper’s on notice that Mullen was claiming she was retaliated against for complaining. Ludwig also ruled that Mullen can proceed with a state law claim of negligent supervision. “The complaint alleges that plaintiff informed her employer of the harassment. Once she did so, its persistence became reasonably foreseeable,” Ludwig wrote. Citing a 1996 decision from the District of Minnesota, Ludwig found that under the Restatement (Second) of Torts Section 317, an employer has a duty to protect an employee after harassment is reported because continued harassment is foreseeable. Ludwig also ruled that Mullen’s lawyer, Michael J. McCaney Jr. of Flamm Boroff & Bacine, can amend the suit to cure the defects in the claim for religious harassment and in her claim for punitive damages. According to the suit, Mullen is a manicurist and esthetician who started working for Toppers in April 1997. She claims her co-workers soon became aware of her “strong moral convictions and beliefs,” including that sexual matters “should be held personal and private” and that “certain sexual acts are offensive.” The other workers harassed Mullen, the suit says, by repeatedly suggesting that she needed to “get herself laid” and that she should use a vibrator. The harassment was “open and notorious,” the suit says, and Mullen claims she repeatedly complained to Topper’s management, including director Karen Loreman. In April 1998, Mullen claims that her manicurist license was up for renewal and that she asked management for a transfer to a position as a full-time esthetician since the harassment she was receiving was taking place in the nail department. But instead of accommodating her religious needs, the suit says, Topper’s “perceived [Mullen] … as undesirable in retaliation for her complaints,” and she was fired. The suit included two claims under Title VII of the Civil Rights Act — one for religious discrimination and the other for sexual harassment through a hostile environment — as well as a state law claim of “negligent supervision.” Ludwig found that to make out a prima facie case of religious discrimination, a plaintiff must show she had a “bona fide religious belief in conflict with an employment requirement,” that she informed the employer of the belief, and that she was discriminated against for failing to comply with the requirement. Mullen’s allegations were “insufficient,” Ludwig said, because her complaint stated only that she “repeatedly complained of this harassment to management,” but did not “specify that she advised her employer of the religious nature of the alleged discrimination.” On the claim of hostile environment sexual harassment, Ludwig found that Mullen failed to exhaust administrative remedies. “The question is whether plaintiff’s EEOC charge of discrimination encompasses both religious discrimination and a hostile work environment claim of sexual harassment,” Ludwig wrote. McCaney argued that the sexual harassment claim was “reasonably related” to the factual statement in the EEOC charge. Ludwig disagreed, saying the test “is whether the acts alleged in the subsequent Title VII suit are fairly within the scope of the prior EEOC complaint.” Mullen’s EEOC charge, he said, “does not set forth information that would constitute notice of a claim of sexual harassment created by a hostile work environment.” Only the “religion” box was checked off in the section titled “cause of discrimination based on,” Ludwig noted. And the factual allegations in the charge, he said, “consistently refer to harassment attributable to her ‘moral convictions and beliefs.”‘ Mullen’s final statement in her EEOC charge said: “I believe I have been discriminated against because of my religion, Christian, in violation of Title VII.” Such a charge is insufficient for putting an employer on notice of a sexual harassment charge, Ludwig found. “Positing that the harassment took the form of comments with ‘sexual overtones,’ the claim is not extended to one of a hostile work environment based on sexual discrimination. It is not averred that plaintiff believed she was discriminated against on the basis of her sex,” Ludwig wrote. Topper’s lawyer, Ronda K. Kiser of Marshall Dennehey Warner Coleman & Goggin, argued that Mullen’s claim of retaliation should also be tossed out because it was never mentioned in the EEOC charge. Ludwig disagreed, saying that although Mullen did not mark the box labeled “retaliation” as a cause of discrimination, the claim was fairly brought. “It is not necessary for a complaint to mirror an EEOC charge; it must only be ‘within the scope’ of the charge,” Ludwig wrote. “That the ‘retaliation’ box was not checked does not itself preclude plaintiff’s claim. The facts stated in the charge are ample and specific enough to put the EEOC and defendant on notice that plaintiff claimed to have been retaliated against for complaining about the harassment,” he wrote.

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