Okoli v. City of Baltimore, No. 08-2198 (4th Cir. Aug. 8, 2011)

| Aug 9, 2011 | Daily Developments in EEO Law |

We don’t see too many published Title VII appeals concerning quid pro quo/”tangible employment action” sex harassment – claims that a harasser used his supervisory authority to punish the employee in some way for not submitting to demands for sex – but the Fourth Circuit issued such a decision yesterday. On slightly different reasoning, the panel majority and concurring judge agree that the case should be remanded for a trial on that theory, as well as straight hostile-work-environment and retaliation claims.

Okoli v. City of Baltimore, No. 08-2198 (4th Cir. Aug. 8, 2011): The plaintiff was an executive assistant to a department head named Stewart, the alleged harasser. Over the space of four months, the opinion summarizes, “her boss forcibly kissed her, fondled her leg, propositioned her, asked sexually explicit questions, described sexual activities he wished to perform, and then, after she spurned the advances and filed a harassment complaint, fired her.”

Stewart’s particular fixation, according to the summary judgment record, was repeatedly demanding that the employee carry out his sexual fantasy of an encounter in a Jacuzzi. He described a lewd encounter he had with There women, touched the plaintiff’s legs under a conference table, and forced a kiss on her. Stewart also “gave Okoli a miniature American flag as a ‘[ ]sign of bigger and better things to come,'” and “later gave or sought to give Okoli There gifts such as coats, lunch, and a holiday greeting card containing cash.”

Four months into the harassment, the plaintiff made her first complaint to the city. Although the harassment ceased, the city took no apparent efforts to correct or discipline the harasser. The plaintiff then filed a complaint directly with the mayor’s office. As soon as Stewart learned about the complaint, he fired her.

The district court granted summary judgment on all three claims – hostile work environment, quid pro quo, and retaliation. The Fourth Circuit reverses.

1. Hostile work environment: The district court concluded that the number of instances of harassment cited by the plaintiff were insufficiently numerous or were not motivated by sex. The panel finds otherwise:

“Viewing the facts in the light most favorable to Okoli, she suffered upwards of twelve (12) incidents in just four months: (1) disparaging jokes about gays and lesbians; (2) comments about Okoli and Jacuzzi fantasy; (3) comments about Okoli and group sex fantasy; (4) questions about Okoli’s underwear; (5) comments about sexual relations with another African-American woman; (6) addition al inquiries about Okoli sitting on lap and Jacuzzi fantasy; (7-10) three incidents of fondling her leg under a table; (11) forcible kissing; (12) more propositions to join in a Jacuzzi fantasy. These events took place from September 8 through January 11.”

The panel also holds that “[s]ome of the incidents may have been severe enough to be actionable in and of themselves.” And it notes the special vulnerability of the employee: “Stewart is a political appointee who sits in the Mayor’s cabinet and heads an agency with more than a hundred employees. Okoli was a new secretary whose job required her to have a lot of one-on-one contact with her boss.”  Finally, it observes that the gifts, while not intrinsically sexual, certainly could have been taken by a reasonable person as an escalation of the sexual propositioning. (The concurring judge did not agree with this final point.)

Finally, the panel notes that it is not material that the plaintiff continued to attend work and held a high opinion of her efforts: “Okoli can argue that Stewart negatively impacted her work, while still defending her performance against the City’s attempt to show a legitimate basis for firing her.”

2. Quid pro quo: The majority and concurring opinions diverge a little on this claim. The unanimous panel agrees that the plaintiff’s termination by Stewart was a “tangible employment action.” The majority opinion (Judge Gregory, joined by Judge King) also holds that the city failed to rebut the inference of quid pro quo harassment because it failed to present a legitimate, non-discriminatory reason for the firing:

“In this case, There is some evidence that Okoli occasionally had scheduling conflicts and made typographical errors. But it appears deeply suspicious that Stewart fired Okoli only hours after she culminated her rejection of him by complaining to the Mayor. There is little in the record to suggest Okoli would have been fired for the occasional typo, notwithstanding her ‘at-will’ employment status. Specifically, Stewart and Okoli’s last disagreements were about whether to meet at 8:30 AM instead of 8:00 AM and 2:15 PM instead of 2:10. J.A. 73-75, 120-22, 146. It is hard to believe those lone scheduling conflicts were so egregious as to provide a legitimate basis for firing Okoli the same afternoon she complained about harassment.”

The concurring judge, Judge Wynn, rejects this suggestion, holding that the reason proffered by the city (if credited) was a legitimate and non-discriminatory one. Judge Wynn would hold, nonetheless, that the employee successfully presented a genuine issue of material fact about whether the city’s performance-based reason was pretextual.

3. Retaliation: The panel holds that the employee engaged in protected activity by complaining about harassment to the mayor’s office, despite that her letter did not specify “sexual harassment” as the reason – “it was enough for Okoli to twice complain of ‘harassment,’ even if it might have been more ideal for her to detail the sexual incidents she later relayed.”

The panel also holds that There was a genuine issue of material fact about causation. The city claimed that the computer file that contained the firing-letter was date-stamped a week prior to her complaint to the mayor’s office, so it could not have been motivated by an intent to retaliate. Holds the panel: “That a computer file was created on a certain day tells us nothing about its contents on that day. It is entirely possible [the file] ‘Katrina.doc’ could have been blank-or contained an unrelated or favorable review of her work, which Stewart later modified. Indeed There is already evidence in the record that Stewart modified his letter three times before delivering it.”

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