The Fourth Circuit reverses summary judgment in a Title VII retaliation case, where the plaintiff's direct boss allegedly declared that she "wanted someone of a different race" in the job, then proceeded to subject her to "constant surveillance, badgering, and criticism." When the plaintiff "told the City that she intended to file a formal grievance" about the hostile work environment, the defendant fired the plaintiff the very next day.
Strothers v. City of Laurel, Maryland, No. 17-1237 (4th Cir. July 6, 2018): The plaintiff, Ms. Strothers, was hired in 2013 as an administrative assistant in the City's Department of Communications. "She was interviewed by four representatives from the City, including [Mr.] Piringer, the Communications Director, and [Ms.] Koubek, the Community Services Officer. Director Piringer would later reveal to Strothers that Koubek did not want to hire Strothers and that Koubek 'wanted someone of a different race.' Despite Koubek's opposition, Piringer and others thought Strothers, who had over 20 years of experience, was the strongest and "most qualified" applicant and hired her anyway." (Citations omitted.)
"Strothers' troubles began on day one and indeed, ten minutes before her start time." Although Strothers had worked out a child-care accommodation with director Piringer to arrive at work at 9:05 a.m., Koubek began from day-one marking her as tardy because she did not arrive at 8:55 a.m. (supposedly the beginning of the work day). "Koubek effectively superseded the director's decision and had begun keeping a detailed log of Strothers' daily arrival time." Indeed, she allegedly surveilled and kept track of every one of Strothers' absences (for bathroom breaks, meals, and outside appointments). Koubek, indeed, required Strothers to report in and out for every departure from her desk.
Koubek also challenged Strothers' casual-Friday wear:
"According to Strothers, Koubek grabbed and tugged Strothers' pants without asking permission to do so. Koubek also allegedly circled Strothers, lunged at her, and loudly berated her in front of the entire officefor wearing those pants. Though Strothers maintained that she had worn the same pants on past casual Fridays without incident, she offered to change her pants. Koubek then required that Strothers deduct from her personal leave time the amount of time it took for her to go home and change."
Koubek gave Strothers a bad evaluation, despite that (under oath) she "conceded that Strothers did everything she was asked to do." During Strothers' employment with the City, she was the only black employee that Koubek supervised. When Koubek complained about her treatment to Piringer and other city officials, Piringer made the "different race" comment. Another Black employee formerly supervised by Koubek testified that she was also berated and micromanaged.
"On February 26, 2014, Strothers sent an internal memorandum to Piringer complaining about Koubek's actions," citing the enforcement of the desk and bathroom policy and the dress-code incident, as well as the negative review. The memo mentioned the "hostile environment," but did not specifically refer to race. "The record does not show that any investigative steps were in fact taken. Strothers then sent Piringer an email expressing her intent to file a formal grievance against Koubek and requested the relevant forms." Stothers was fired the next day.
The district court held, on her retaliation claim, that the plaintiff failed to establish a protected activity (because she could not have reasonably believed that the harassment was due to race) and causation (because the City was not aware that Strothers was complaining about a possible Title VII violation).
The Fourth Circuit reverses, holding that Strothers made out a prima facie case of retaliation on both elements.
On the first element, protected activity, Strothers announced (before she was fired) that she intended to file a complaint about the hostile work environment. "[O]ur inquiry is whether the circumstances known to Strothers at the time of her complaint support a reasonable belief that a hostile work environment existed or was in progress." The panel holds that the alleged conduct persistent enough to at least arguably constitute harassment:
"When Koubek accused Strothers of violating the dress code, Koubek circled Strothers, lunged at her, and grabbed her pants without seeking permission. Further, Koubek tracked Strothers' every movement in the office, requiring Strothers to obtain permission even to relieve herself in the restroom. Evidence also shows that Koubek considered Strothers late even on days when she arrived before the office's 9:00 a.m. opening.... It is hard to imagine a reasonable worker who would not find unwelcome Koubek's constant surveillance, badgering, and criticism."
The panel also holds that Strothers had reason to believe that the harassment was racially motivated, in light of the "different race" comment. "Strothers' employer injected Strothers' race into the equation and gave her reason to think that her race was relevant to the harassment she was experiencing." She also heard from other Black employees with similar complaints with Koubek. "Strothers was also aware that she was the only black subordinate employee and that she was the only one whom Koubek chose to surveil and scrutinize."
The district court erred by weighing the evidnece in favor of the movant, and giving the "different race" comment an innocent construction, i.e., "that Koubek preferred the white candidate for legitimate reasons; it was only coincidental that the preferred candidate happened to be white." Holds the panel, "Piringer's comment about Koubek's hiring preference creates at least some ambiguity as to her true motivations, and the jury is not required to believe Koubek's rationalization."
The panel also holds that a jury could find "that Koubek's actions were sufficiently severe or pervasive as to alter the terms or conditions of Strothers' employment and create an abusive environment." Indeed, the plaintiff alleged that Koubek directly affected the terms and conditions of employment by altering her schedule, compelling her to report her comings and goings, and ordering that she go home to change her casual-Friday outfit. "A reasonable jury could also find that Koubek's actions objectively interfered with Strothers' ability to do her job. Heightened scrutiny, unfair evaluations, and arbitrary dress codes are likely to make a job more difficult and trigger responses from workers who feel compelled to protest their treatment, which may further interfere with their work."
To impute liability to the company, there was a dispute about whether Koubek was a "supervisor" for Title VII purposes under Vance v. Ball State Univ., 570 U.S. 421 (2013). "However, because Strothers is seeking to prove retaliation, rather than an actual hostile environment claim, she need only show that it was reasonable for her to believe that Koubek was her supervisor." And even if she were not a supervisor, Strothers still had reason to believe that the City failed to investigate her complaints or otherwise exercise due care over the situation.
"It cannot be seriously disputed that Strothers diligently kept the City informed of every aspect of Koubek's harassment, through numerous phone calls, emails, meetings, and detailed memoranda, throughout the duration of her employment .... Despite Strothers' memo and other efforts reporting the harassment, the City neither reassigned Strothers, as she requested, nor took lesser steps to investigate or prevent the alleged harassment."
Finally, regarding causation, the panel holds that the one-day period between the plaintiff announcing that she was going to file a formal complaint and her termination would allow a jury to infer that the two were related. Moreover, even if the employee did not explicitly state "race" in her communications, the City had ample reason to understnad this is what she meant.
"The City should have known that the alleged harassment and hostile environment pertained to racial discrimination given what it knew about Koubek and her relationship with Strothers. Quite simply, Director Piringer was the one who pointed out that Koubek wanted to hire someone of a 'different race' when Strothers complained about how Koubek was treating her. In doing so, Piringer suggested that Strothers' race was relevant to the harassment."
The case is remanded for further proceedings.