Here are two recent sex harassment opinions, reversing summary judgment against the respective plaintiffs, that coincidently discuss the vicarious liability standard of Faragher/Ellerth. The former case holds that a temporary denial of tenure to a school teacher, otherwise provided by law in Puerto Rico, constitutes a “tangible act” that negates any resort by the employer to an affirmative defense. The latter case, brought under South Carolina law, holds that while the plaintiff presented a genuine issue of material fact about whether she was constructively discharged, she failed as a matter of law to prove that her departure was caused by a “tangible act.”
Agusty-Reyes v. Department of Education, No. 09-1247 (1st Cir. Apr. 6, 2010): Here is the plaintiff’s claim as summarized in the panel opinion:
“Agusty alleges that [her manager] Hernández sexually harassed her from the moment they met. He made numerous sexually charged comments to her, described how ‘pretty’ she was, and took opportunities to be in physical contact with her and to look into her classroom to see her. Hernández insisted all meetings with Agusty take place in private and told her he would give her a good evaluation if she would ‘touch him.’ This harassment was frequent and blatant. Agusty’s colleagues, students, and students’ parents observed and commented on Hernández’s behavior. When Agusty declined his advances, Hernández sent her ‘intimidat[ing]’ memos in which he claimed ‘he would destitute’ her and called her ‘dumb’ and insubordinate.”
After the plaintiff officially complained to the agency, Hernández (allegedly) criminally attacked her:
“On the morning of January 19, 2007, Agusty went to Hernández’s office to deliver a response to his memo. At that point, he pulled her down, forcing her to be seated on his lap, and began to ‘touch her intimate parts.’ Agusty ‘screamed asking for help and kicking.’ A security guard, typist, and several parents heard her screams and cries for help and came to her assistance. They found Agusty in Hernández’s lap with her back toward him and his hands on her shoulders. The police arrived at the school soon afterward.”
Though the agency carried out an investigation of the harassment, it ultimately dismissed the plaintiff’s complaint as unfounded. As of the present time, the record reflected that criminal proceedings against Hernández were still under way, and a protective order was still in effect.
During the pendency of the plaintiff’s complaint, Hernández had awarded the plaintiff the lowest possible rating on her evaluation, which the agency used in turn to deny her tenure after the statutorily-prescribed two-year period. When she was placed under different supervision, her performance reviews broadly improved and she was allowed — more than a year after tenure should have been awarded — to obtain retroactive tenure
The agency attacked plaintiff’s claim on three grounds, all aimed at showing that liability for Hernández’s harassment could not be imputed to the employer: (1) that a temporary denial of tenure under Puerto Rican law was not a “tangible act,” (2) that the existence of an anti-harassment policy (Regulation 4661) satisfied the first prong of the Faragher/Ellerth defense, and (3) that the plaintiff did not reasonably avail herself of that policy by failing to make an early-enough internal complaint. The district court granted summary judgment on all three grounds.
The First Circuit panel reverses. First, it holds that there are several reasons why a jury could find that the temporary denial of tenure constituted a “tangible action,” which would deprive the agency of any affirmative defense:
“On this record, there are several theories on which a jury could find Hernández’s actions resulted in tangible employment actions. The grant or denial of tenure could be viewed as similar to a decision whether to promote, a well-recognized tangible employment action. A failure to grant tenure could also lead to a meaningful change in an employee’s benefits in an up-or-out situation at a time when budgetary constraints loomed. Finally, a reasonable jury could certainly find that both Hernández’s deliberate delay in evaluating Agusty’s performance and his harshly critical assessment, which was directly linked to the tenure decision, adversely impacted Agusty’s employment by delaying her receipt of tenure and the job security that would accompany it.”
Second, it holds that even if the harassment did not culminate in a tangible act, the agency was not entitled to summary judgment on the Faragher/Ellerth defense. It concludes that the employer failed in this case to prove either prong as a matter of law. Even though the agency had an anti-discrimination policy, “there is no evidence that the DOE made the slightest effort to communicate its policy, whether or not it was reasonable on its face, to any of its employees, let alone to its regional directors, its supervisors, or Agusty.” Moreover, the procedures of the agency’s policy were tilted heavily against the complaining employee:
“As Agusty’s experience illustrates, the DOE’s application of Regulation 4661 affords victims no opportunity to testify in support of their complaints once they are filed or to reply to the alleged harassers’ testimony. By contrast, those accused of sexual harassment are given an ex parte proceeding at which they can present their version of events, with counsel, without fear of rebuttal testimony or corroborative evidence from alleged victims and witnesses. Victims are not even given notice of the hearing. Indeed, in this case, the examining officer’s decision turned on a credibility determination that weighed Hernández’s live testimony against Agusty’s written statement, when she was given no opportunity to testify in person. A jury could readily find that these procedures were inherently unreasonable. A jury could also find that the investigation here was so cursory as to be inadequate.”
Finally, the employee presented a genuine issue of material fact about whether she reasonably availed herself of the procedures that were available to her. “A jury could undoubtedly conclude that Agusty’s concerted efforts to report Hernández’s inappropriate behavior well before her January 22, 2007, complaint, constituted an altogether reasonable attempt to avoid further harm.”
The employee also filed a Title VII retaliation, and on this claim, too, the panel reverses summary judgment. It finds that the re was evidence in the record that Hernández’s harassment escalated after the plaintiff complained. Moreover, “Hernández completed his harsh evaluation about two weeks after Agusty first described his conduct to the DOE’s Regional Director and two days after he was copied on a letter related to that meeting.”
Whitten v. Fred’s Inc., No. 09-1265 (4th Cir. Apr. 1, 2010): This case turned out slightly differently for the plaintiff, who still managed to reverse summary judgment but was unable to establish a “tangible act.”
The employee worked at a grocery store under a store manager, named Matt Green. According to the opinion:
“Whitten worked for Fred’s in the Belton store for only two days. Over the course of those two days, Green made it clear that he was unhappy that Whitten had been transferred to his store, repeatedly calling her dumb and stupid, and telling Whitten that he did not want her working in his store. On Whitten’s first day of work (a Friday) in Belton, Green told her that if she wanted long weekends off from work, she needed to ‘be good to [him] and give [him] what [he] want[ed].’ J.A. 123. Green told her that he would make her life a ‘living hell’ if she ever took work matters ‘over [his] head.'”
There was evidence in the record that Green twice rubbed his genital area on Whitten. When Whitten complained to the next level, a district manager named Robert Eunice, he told her to return to work.
“Fred’s began an investigation into her complaints a few days later. Fred’s ultimately closed the investigation without any findings, determining that Whitten’s claims could not be verified or rejected. Green was not disciplined in any way and continued to be employed by Fred’s, and Fred’s did not offer any remedy to Whitten, such as reinstatement and transfer to another store.”
The Fourth Circuit, reversing summary judgment, is first forced to hack through a thicket of procedural issues arising under state law. First, it finds that the EEOC’s transmittal of plaintiff’s charge to South Carolina’s State Human Affairs Commission satisfied the requirement that a charge of discrimination be made “to the Commission” under S.C. Code Ann. § 1-13-90(a). It also holds that the claim was timely filed under state law, where (1) the plaintiff must file the earlier of one year after the event or 120 days after dismissal of dismissal of her state charge; (2) the complaint was filed within one year of final harassing events; and (3) the state agency had never dismissed her charge (even though the EEOC did.) Finally, it determines that judicial estoppel did not apply in this case, where the plaintiff — in bankruptcy — did not conceal or deny that the claim was an asset, having disclosing it in her original bankruptcy filing.
On the merits, the panel holds that despite the absence of reported law in South Carolina under the state law, the state’s civil rights statute substantively tracks Title VII law. It then holds that the plaintiff presented a genuine issue of material fact about whether the store manager’s harassment could be imputed to the employer. In particular, the panel holds that the record overwhelmingly establishes that Green was the plaintiff’s supervisor. He was usually was the highest ranking employee in the store, which meant that there typically was no one superior to him to provide a check on his behavior. The level of authority manager had and exercised over plaintiff was significant, i.e., he could change Whitten’s schedule and impose unpleasant duties. It was not determinative, according to the panel, that the plaintiff could (and, indeed, did) tell the manager to halt the harassment.
Turning to possible application of Faragher/Ellerth affirmative defense, the panel allowed that actions giving rise to plaintiff’s hostile environment claim — such as changes in her work schedule, assignment of unpleasant tasks as punishment, the verbal and physical abuse — did not, in themselves, amount to tangible employment actions. It holds that such actions might amount to a constructive discharge: “A reasonable person could certainly find intolerable a working situation where a corporate official is utterly unconcerned about sexually-tinged physical assaults inflicted on a subordinate by a supervisor.” Nevertheless, under Pennsylvania State Police v. Suders, the panel holds that a constructive discharge must precipitate around a “company act,” and here the only act that the plaintiff could point to (district manager’s failure to stop manager’s conduct, and a failure to take any steps to protect plaintiff from manager) was not such an act.
Hence, the panel concludes that the Faragher/Ellerth affirmative defense would apply on remand. The panel nevertheless holds that the employee presented a genuine issue of material fact about whether the employer acted reasonably on the employee’s complaints when it took no steps to penalize the alleged harasser or move the employee to a different location.