Tenth Circuit Joins Other Courts on Failure to Accommodate Claims

By: Jonathan R. Mook

One of the defining features of the Americans with Disabilities Act (“ADA”) is the obligation of an employer to take affirmative steps to provide “reasonable accommodation” to individuals with disabilities in order to enable them to perform the essential functions of the job.

In this regard, the ADA defines discrimination as “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee.”
For most courts, to state a reasonable accommodation claim, a plaintiff need merely show that with reasonable accommodation, she could have performed the essential functions of the job, that the employer had notice of the plaintiff’s disability, and that the employer failed to provide the accommodation. There is no need for a plaintiff to make an additional, separate showing that she suffered an adverse job action as a result of the employer’s failure to accommodate.

The only circuit court to deviate from this view has been the Tenth Circuit, which, in a 2018 three-judge panel opinion in Exby-Stolley v. Bd. Of Cty. Comm’rs, held that a plaintiff must establish an additional element: that he or she suffered an adverse employment action as a result of the failure to accommodate. The panel opinion prompted a vigorous dissent by one circuit court judge, which led the plaintiff to seek en banc review by all of the judges on the Tenth Circuit.

The circuit court accepted review, and in a closely divided seven-to-six decision, the Tenth Circuit, sitting en banc, reversed the 2018 panel decision and sent the case back to the district court for a jury trial to decide the plaintiff’s failure to accommodate claim. In doing so, the appeals court followed the reasoning of its sister circuit courts and held that to pursue a failure to accommodate claim, a plaintiff is not required to show that she suffered an adverse employment action.

Although some commentators have expressed concern that the Tenth Circuit’s en banc decision in Exby-Stolley will open the flood gates for ADA reasonable accommodation claims, the impact of the decision may not be as dire as has been painted. Most ADA claims arise when a disabled employee requests an accommodation to perform the essential functions of the job, the request is denied, and the employee is later terminated or demoted because the employee cannot satisfy the job requirements. Thus, in addition to an employer’s failure to accommodate, the employer also has taken an adverse job action (such as termination or demotion). Accordingly, only time will tell how the Tenth Circuit’s decision in Exby-Stolley will impact the development of ADA law.

If you would like a copy of Jonathan’s article entitled, “Tenth Circuit Joins Other Courts on Failure to Accommodate Claims,” which appears in the March, 2021 issue of Bender’s Labor & Employment Bulletin, please contact Jonathan at jmook@dimuro.com.

THE ERA: RIP?

By: Jonathan Mook and Colete Fontenot

In 2020, the Virginia General Assembly ratified The Equal Rights Amendment (ERA), becoming not only the 38th state to endorse the Amendment, but also the final state to satisfy the required two-thirds majority needed to amend the U.S. Constitution.  Although equal rights activists celebrated Virginia’s passage of the ERA, the long journey towards ratification did not end.  In fact, it was just the beginning of a new chapter.

That’s because when Congress passed the ERA with a super majority back in 1972, the preamble included instructions giving the states seven years to secure the necessary two thirds approval.  When that didn’t happen, Congress passed an extension for three more years until 1982, but that extension too failed to result in the necessary support from the states.

Court Suits

Virginia’s ratification 28 years later, therefore, triggered litigation as to whether its belated ratification was effective.  Three late ratifying states, including Virginia, brought a suit in the federal District Court for the District of Columbia to compel the Archivist of the United States to certify the ERA as the 28th Amendment to the Constitution.  They argued that the deadlines set by Congress were included in only the preamble- not in the text – of the proposed amendment, and therefore, were not binding.  Recently, Judge Rudolph Contreras dismissed the case on the basis that “the Archivist has no duty to publish and certify the ERA.”  In his ruling, Judge Contreras did not address the issue of deadlines or deadline extensions.  No decision to appeal the judge’s decision has yet been made.

Legislative Action

The court’s decision prompted action by Congress, however.  Less than two weeks after Judge Contreras’s ruling, the House voted 222 – 204 to remove the 1982 deadline for state ratification of the ERA.  Next, the House bill will go to the Senate for consideration.  While Senators Lisa Murkowski (I-AK) and Susan Collins (R-ME) have voiced support for the ERA, there is little confidence that the evenly divided Senate will take up the House bill, particularly because for many conservatives, the amendment represents an attempt to “put abortion in the constitution” and to provide legal rights to transgender persons.

Bottom Line

At this point, the status of the ERA remains in limbo.  Because surveys show that the ERA continues to have broad support from the public, including almost unanimous support among Millennials and Generation Z, there likely will be additional efforts to have Virginia’s ratification of the ERA be deemed to have full force and effect and to secure adoption of the ERA as the 28th Amendment.  Should this occur, the impact not only on employers, but our society in general, will likely be profound because the amendment not only will guarantee that the rights affirmed by the Constitution are held equally by all persons without regard to their sex, but also will provide a Constitutional right of equality that all Americans can enforce.  Accordingly, we will continue to follow this important issue, and update you as developments occur.

Editor’s Note:  For additional information on Virginia’s ratification of the ERA and the potential impact on employers, please see Jonathan and Colete’s article, “Virginia to Ratify Equal Rights Amendment” in the February, 2020 issue of the Mid-Atlantic Employment Law Letter.

Jonathan R. Mook is an attorney with DiMuroGinsberg, PC, in Al­exandria, Virginia. You can reach him at jmook@dimuro.com. Colete Fontenot is a legal assistant who provided much valued research as­sistance in preparing this article.

Fourth Circuit Upholds Shortened Limitations Period in Arbitration Agreement

By:  M. Jarrad Wright and Jonathan R. Mook

Over the last number of years, employers increasingly have been requiring employees to sign mandatory arbitration agreements as a condition of employment.  This trend has been on the uptick due to employer concerns about the ever increasing cost of court litigation and the potential for runaway juries to award millions of dollars in damages based upon pure emotion rather than fact.  An additional benefit of arbitration recently was highlighted by the Fourth Circuit Court of Appeals in Bracy v. Lancaster Foods LLC, Case No. 19-1292.  In that case, the court ruled that an employment agreement’s requirement that any claim be made within one year was enforceable even though a number of employment related claims the plaintiff asserted had longer limitations periods.

The Facts
The case was brought by Michael Bracy, who worked as a truck driver for Lancaster Foods LLC.  When he was hired, Bracy signed a mandatory arbitration agreement, which required that any claim he might make against the company needed to be brought within one year and that the claim would be heard by an arbitrator, not by a jury.

After suffering an on-the-job injury, Bracy and Lancaster disagreed about his work restrictions, and ultimately, Lancaster viewed Bracy’s position as a resignation.  Subsequently, Bracy sued Lancaster in state court asserting various employment claims.

Lancaster removed the case to federal district court and sought to dismiss Bracy’s lawsuit and compel arbitration based upon the terms of the arbitration agreement Bracy had signed.  Bracy opposed Lancaster’s motion, arguing that the arbitration agreement was unconscionable and could not be enforced because it shortened all applicable statutes of limitation to one year.  The district court rejected Bracy’s contention that the arbitration agreement was not enforceable and dismissed Bracy’s suit.

Fourth Circuit Decision
Bracy appealed the district court’s decision to the Fourth Circuit Court of Appeals, which is based in Richmond and whose decisions apply to federal courts not only in Virginia, but in West Virginia, North and South Carolina, and Maryland as well.  On appeal, the Fourth Circuit made short shrift of Bracy’s argument that Lancaster’s arbitration agreement could not be enforced because it shortened that statute of limitations for employment claims.  Relying upon prior established Fourth Circuit law, the court held that as “a general rule, statutory limitations periods may be shortened by agreement, so long as the limitations period is not unreasonably short,” and as long as the statute at issue does not prohibit contractually shortened statutes of limitations.  The appeals court also noted that contractual limitation periods of one year or less have been found to be reasonable.  Accordingly, the court affirmed the district court’s dismissal of Bracy’s lawsuit.

Bottom Line:  The Fourth Circuit’s decision in Bracy serves to confirm the benefits of having your employees sign mandatory arbitration agreements as a condition of employment.  However, those agreements must be properly tailored to ensure that they will pass court muster.  Although the Fourth Circuit in Bracy approved an arbitration agreement with a limitation period of one year, the court’s reasoning makes clear that a thirty-day limitation for pursuing a claim, in all likelihood, would render the agreement unconscionable and unenforceable.

Where to draw the line on the statute of limitations as well as other provisions in an arbitration agreement are matters that should be determined based upon consultation with experienced employment counsel.  The last thing that any employer wants is to require employees to sign mandatory agreements to arbitrate and, later, find out that those agreements are unenforceable due to an unconscionable provision.

Virginia Legalizes Recreational Pot, But Questions Remain

By:  M. Jarrad Wright

The Old Dominion now has the “honor” of being the first state in the South and the sixteenth state in the nation to legalize marijuana.  With only hours to go before the end of this year’s legislative session, the State Senate and House of Delegates struck a compromise and passed a bill that will legalize marijuana for adult recreational use and retail sales in 2024. The vote occurred on a party line basis without any Republican support.  Democratic Governor Ralph Northam has been supporting legalization efforts, and there is little doubt that he will sign the legislation into law.

Details of the New Law
The new Virginia law will make possession of up to an ounce of marijuana legal when sales are slated to begin in 2024.  The bill also will allow home cultivation of four plants for each household.  Revenue generated through the sale of marijuana is designated for pre-K education and public health initiatives in the state.

Significantly, the legislation includes a clause requiring a second vote in the General Assembly next year to approve the requirements for regulating marijuana sales, but that procedural hurdle will not impact the timeline for legalization.  With the General Assembly up for election this November, the task of finalizing the regulatory framework, therefore, has been left to a General Assembly whose configuration in terms of legislators and party affiliation is as yet unknown.  That especially is the case since the fallout from the General Assembly’s legalization of recreational marijuana use and sales is likely to impact some key races around the Commonwealth, as many Republican legislators in Richmond argued that the legalization bill was rushed, while many Democrats argued that the bill does not go far enough.

Impact on Employers
From an employer’s perspective, the status quo is maintained for the immediate future.  Looking ahead, however, there remain significant business questions that have not been addressed, including how employers should conduct drug testing given that recreational marijuana use will now be legal and potentially prevalent.  Employers, therefore, are likely to be facing a number of challenges in maintaining drug free workplaces.

Assessing with any assurance the practical impact upon employers of the legislation will need to await future developments. Virginia’s laws regarding marijuana, as well as those in most of the country, continue to be in flux, and employers need to keep themselves apprised of any changes in the legal landscape.  Accordingly, we shall continue to update you as Virginia moves forward in establishing the regulatory framework for the sale of recreational marijuana.

Potential Concerns
Of special concern is whether the General Assembly may seek to provide legal protection to those persons who legally use marijuana.  Other states have done so, and prohibit an employer from taking an adverse job action against an employee simply because the individual is legally using pot outside the workplace.  Should Virginia move in this direction, the impact on employers is clear.

In short, this year’s General Assembly action to legalize recreational pot clearly is not the end of the story.  Stay tuned.

Virginia Enacts Limited Paid Leave

By:  Jonathan R. Mook

At the start of this year’s Virginia General Assembly session, proponents of paid sick and family medical leave for employees had high hopes that the legislature would follow the lead of other states and pass legislation to mandate that Virginia employers provide paid leave for their employees, especially in light of the continuing COVID-19 pandemic.

As we reported earlier in DG Read, Delegate Elizabeth R. Guzman of Prince William County and Senator Barbara A. Favola of Arlington each introduced proposed legislation specifying a paid leave mandate. Although the details of the bills differed in terms of those employers that would be covered and the circumstances and amount of paid leave required, the proposed bills represented a significant step in what has become a nationwide push to recognize paid leave as a universally accepted employee right.

Legislative Action
In early February, the Virginia House of Delegates passed Del. Guzman’s Bill, which would guarantee paid sick leave for certain “essential workers,” like first responders, grocery store employees, home health and domestic workers, and prison personnel.  The proposal required employers to provide these workers with forty hours of paid sick leave per year, with exemptions for retail companies that have fewer than 25 workers.  The Bill also allowed covered employers to seek a hardship waiver.

After passing the House, the Bill went to the Virginia Senate, where it was considered by the Commerce and Labor Committee.  Although the House Bill was supported by the Virginia Interfaith Center and a coalition of small businesses, the legislation faced tough sledding in the Senate Committee.

Accordingly, the Bill was scaled back to cover only home healthcare workers serving Medicaid patients, and those workers would be guaranteed up to five days of paid sick leave per year.  In its scaled back form, the paid leave legislation was passed by both the Virginia Senate and the House of Delegates, and it is expected that Virginia Governor Ralph Northam will sign the legislation into law.

Impact of New Law
Although this year’s General Assembly took only a small step toward mandating paid sick and family leave for employees, the legislation covering home healthcare workers still will have a significant impact.  That’s because it is estimated that there are some 40,000 caregivers in the Commonwealth who likely will be covered.  Thus, the door certainly has been opened for concerted efforts in future Virginia legislative sessions to expand an employee paid leave mandate beyond home healthcare employees.

Future Paid Leave Efforts
We can expect that at next year’s General Assembly session, the advocates for paid employee leave will be back in Richmond and will continue their efforts to push for more comprehensive legislation.  Accordingly, all Virginia employers need to keep abreast of future developments on the paid leave front.  You do not want to be caught unawares when a paid leave requirement affecting your business operations is enacted into law.

Virginia Creates Office of Civil Rights

By: Billy B. Ruhling, II

The cultural awakening our nation has experienced over the last year in the wake of police shootings and the recognition that what had once been common behavior toward certain gender groups no longer is acceptable in the Old Dominion. On January 5, 2020, Virginia Attorney General Mark Herring announced that the existing Office of Human Rights would be restructured in order to create a new Office of Civil Rights. Along with the name change, the staffing will be significantly increased, and the new office will have a more encompassing scope of reach.

This change builds upon a series of bills passed in the General Assembly last year authorizing Virginia’s Attorney General to investigate discrimination in local police departments as well as enhancing the Attorney General’s ability to protect LGBTQ rights and to root out gender-based discrimination. The Office of Civil Rights will be staffed by seven attorneys and six staff members, which is a dramatic change from the Office of Human Rights’ prior complement of just one attorney and three staff members. As Attorney General Herring explained when announcing the change, “The Office of Civil Rights will enhance our ability to protect Virginians from discrimination in housing, employment and public life, as well as allow us to tackle new responsibilities, like ‘pattern and practice’ investigations that can root out and end unconstitutional policing and enforcing protections against discrimination for LGBTQ Virginians.”

The new office can be reached at 804-225-2292 or CivilRights.oag.state.va.us.

Virginia Set to Legalize Recreational Marijuana

By: Jarrad Wright

Virginia is on the verge of making history and becoming the first state in the South to legalize and regulate recreational marijuana.  Last year the General Assembly decriminalized marijuana by eliminating criminal sentences and replacing them with small fines.  Now, on February 2, 2021, the House, in an 55-42 vote, passed HB2312 which sets forth a regulatory framework for legal sales of recreational marijuana.  A few hours later, the State Senate bill later that day passed SB1406 in a 23-15 vote.

The two bills are similar in that they set forth a regulatory authority to handle the taxing and sale of recreational marijuana, but there are differences between the two bills that will require reconciliation between the two chambers.  For example, the Senate version allows local governments to opt-out of sales and requires another vote by the General Assembly to finalize the regulatory process.  Accordingly, the reconciliation process between the competing bills is ongoing, and Governor Northam has indicated that he will likely sign the final bill into law.

Although the form of the regulatory scheme for marijuana sales is becoming in focus, Virginia employers have many unanswered questions.  For example, both bills restrict the ability for anyone to obtain criminal records related to marijuana checks and this will impact background checks run by employers in the hiring process.

Another important question is whether employers can maintain their current drug testing policies and, relatedly, whether employers will be able to fire employees for positive marijuana tests.  The current House and Senate bills do not address these issues directly.  Under current law employers can maintain drug testing policies for marijuana, and current Virginia law generally allows employers latitude in setting policies that allow them to test and to fire employees for legal drug use outside of working hours.  The only statutory exception is that public employers are prohibited from firing employees for tobacco use outside of work hours.  The current bills in the General Assembly does not change this general framework, and unless the General Assembly addresses these issues during the reconciliation process, presumably Virginia employers will still be allowed to have policies for drug testing and policies allowing them to fire employees for positive marijuana tests.

However, the law is developing quickly, and there is a distinct possibility that the General Assembly addresses these issues in reconciliation or in upcoming bills.  Moreover, if not addressed by the General Assembly this issue is likely to be litigated as it has been in other states such as Colorado.  In that state, courts recognized employers’ rights to maintain drug testing.  As time goes on and because the General Assembly is setting forth a public policy to decriminalize and to raise tax revenue for pre-kindergarden through marijuana sales, a court in theory could hold the opposite view.

Ultimately, Virginia’s law concerning marijuana usage is rapidly changing and employers need to be aware that there are likely to be many changes in the upcoming year. While the General Assembly is working on the current legislation, elections will occur in November, and the scope and breadth of the changes are likely to impact some races in the state.  Moreover, just as other states have had to make adjustments as they have legalized and regulated marijuana, Virginia is likely to make adjustments for the foreseeable future to address unforeseen issues.  Virginia employers, especially those working with federal contracts or those with offices in multiple states, should continue to monitor the changing regulatory environment to make sure their policies stay compliant.

Virginia Law Targets Worker Misclassification

By: Jayna Genti, DiMuroGinsberg P.C.

Companies misclassifying their employees as independent continues to be a hot-button issue throughout the country, and Virginia is no exception. In the last year alone, legislation related to independent contractor misclassification was introduced at the federal level and in at least 20 states. New Jersey and California recently enacted employee misclassification laws, and other states including New York are considering similar legislation.

Virginia Acts to Prevent Misclassification

In 2019, Virginia Governor Northam issued an executive order calling for an inter-agency task force to make recommendations on how to address the issue.  The study results issued last November found that about 214,000 Virginia workers are misclassified as contractors, costing the Commonwealth some $28 million in tax revenues each year.

In response to the task force’s recommendations, the Virginia General Assembly passed legislation this term that seeks to prevent misclassification and to penalize those employers who misclassify their workers.  Governor Northam recently signed the legislation into law, which will take effect January 1, 2021.

Classification of Employees

Under the new law, the Virginia Department of Taxation will determine whether a worker is an employee or independent contractor by applying Internal Revenue Service guidelines.  The IRS guidelines involve a multi-factor analysis, with the most important being the level of control exercised by a company.  In making the requisite assessment, the presumption will be that a worker who performs a service for an employer for pay will be considered an employee unless the individual or his or her employer demonstrates that she is an independent contractor.

Penalties and Enforcement

The new Virginia misclassification law has some real teeth.  Businesses that improperly treat their employees as independent contractors will be subject to a fine of up to $1,000 per worker for a first offense.  Maximum fines will increase to $2,500 per misclassified individual for a second offense, and up to $5,000 per misclassified individual for a third or subsequent offense.

The new legislation also prohibits the awarding of public contracts to employers that misclassify workers.  Debarment will last for up to one year for a second offense and up to two years for a third offense.  The legislation further requires the Virginia Department of Taxation to share information to help with enforcement.

Further Efforts to Halt Misclassification

The new Virginia law imposing penalties for employee misclassification will not be the end of the story.  Further efforts are likely to be forthcoming to crack down on employers who misclassify their workers, and deny tax revenues to both states and the federal government.  The impetus for the Commonwealth to move quickly against employee misclassification has arisen as a result of the recent federal legislation extending unemployment insurance to gig workers and other independent contractors who do not traditionally receive unemployment when they cannot work.  Unemployment benefits are funded by specific payroll taxes on employee pay.  Companies, however, do not pay unemployment insurance for independent contractors, even though they will now be able to receive unemployment benefits courtesy of the federal government.

Thus, we can expect heightened scrutiny on companies that misclassify employees as independent contractors and, thereby, evade their obligation to pay unemployment taxes.  As it stands, misclassification already has reportedly denied the Commonwealth substantial revenue, and this concern will only be heightened by the current COVID-19 pandemic and the stay-at-home orders shuttering many businesses.

Bottom Line

Going forward, you can expect greater attention by Virginia enforcement and investigative agencies to claims of worker misclassification.  Those agencies are on high alert for violations of the law and undoubtedly will use the full spectrum of available enforcement mechanisms to crack down and penalize those employers that evade the law.  The stakes of losing at the agency level are high and can lead to fines, legal expenditures, and litigation.

Given the continuing evolution of these and other related employment law matters, you are well advised to undertake a thorough assessment of the appropriateness and defensibility of classifying any members of your workforce as independent contractors.  Such an evaluation should be undertaken under the direction of an employment law attorney who is well versed in these matters and can review your policies and present workforce classifications to ensure legal compliance.  Misclassification no longer will result in simply a slap on the wrist.  Real penalties will now be imposed.

Virginia creates Office of Civil Rights to target discrimination

By: Billy B. Ruhling, II, DiMuroGinsberg P.C.

Virginia Attorney General (AG) Mark Herring has launched a new Office of Civil Rights to help protect residents from discrimination. The move is seen as a response to the cultural awakening the nation experienced in 2020 after high-profile police shootings and the recognition that once-common offensive behavior toward certain gender groups is no longer acceptable in the Old Dominion.

What’s changing

On January 5, 2021, Herring announced the existing Office of Human Rights would be restructured to create the new Office of Civil Rights. Along with the name change, the staffing will increase significantly, and the new office’s scope and reach will be more encompassing.

The Office of Civil Rights will be staffed by seven attorneys and six staff members, which is a dramatic uptick from the Office of Human Rights’ previous complement of just one lawyer and three staffers.

The change builds upon a series of bills passed in the Virginia General Assembly in 2020 authorizing the AG to investigate discrimination in local police departments and enhancing the agency’s ability to protect LGBTQ rights and root out gender-based discrimination.

As Herring explained when announcing the change, “The Office of Civil Rights will enhance our ability to protect Virginians from discrimination in housing, employment and public life, as well as allow us to tackle new responsibilities, like ‘pattern and practice’ investigations that can root out and end unconstitutional policing and enforcing protections against discrimination for LGBTQ Virginians.”

You can reach the new office at 804-786-2071 or by e-mail at CivilRights@oag.state.va.us.

Billy B. Ruhling, II, is an attorney at DiMuroGinsberg P.C. in Alexandria, Virginia, and can be reached at bruhling@dimuro.com.

Co-Worker’s Offensive Statements to Colleague May Not Give Rise to Hostile Work Environment Claim

By: Stacey Rose Harris

Nicole Bazemore is an African-American who worked at Best Buy.  One day at work, her white colleague, Anne Creel, held up a hazelnut and said that she used to refer to those kinds of nuts as “N[….]r T[…]s.”  Bazemore was deeply offended and reported Creel’s conduct to management.  After some time, Bazemore was told that the situation had been addressed, but she was not told specifically what action was taken.  Creel did not make these statements again, but she was also not fired.  Nevertheless, Bazemore was deeply humiliated by the incident and believed it should have been addressed more publicly and with more severity.  She sued Best Buy in federal court in Maryland, asserting a claim of hostile work environment under Title VII of the Civil Rights Act.

Best Buy moved to dismiss Bazemore’s claim, arguing that Creel’s conduct could not be imputed to it.  Specifically, to state a claim against an employer for hostile work environment, the plaintiff must allege four elements: (1) that she was subject to unwelcome conduct; (2) based on her race or sex; (3) that was severe enough to make her work environment hostile or abusive; and (4) which conduct is imputable to her employer.

The question of imputation was the subject of the court’s analysis.  This element was problematic for Bazemore because the statement was made by a co-worker, not a superior.  The law in the Fourth Circuit is that, to show imputation, a plaintiff must allege that the employer knew, or should have known, about the harassment and failed to take action reasonably calculated to stop it.  Bazemore had alleged that she informed Best Buy of Creel’s statement; that Best Buy had taken action (albeit not action as forceful as Bazemore would have liked), and that Creel’s conduct did not repeat.  Based on Bazemore’s own allegations, she failed to show that Best Buy knew or should have known of the conduct and failed to take reasonable actions to stop it.  When the wrongdoer is a superior, it is more difficult for the employer to overcome the burden of showing that it did not know of, or took reasonable actions, to stop the conduct.

Even if Best Buy’s corrective measures were not as strong as Bazemore would have liked, the Court noted that it does not “does not sit as a kind of super-personnel department weighing the prudence of employment decisions made by firms charged with employment discrimination . . ..” Rather, Bazemore’s allegations that Best Buy did address the situation, and that Creel’s conduct did not occur again, were sufficient to defeat Bazemore’s ability to satisfy the fourth element of her claim.

The take-away of this ruling for employers is to take immediate action in response to racially or sexually offensive remarks, and document those efforts, including follow-up.  These kinds of measures may be sufficient to defeat a claim of hostile work environment when the wrongdoer is a colleague, (not a superior) of the plaintiff.