by Gregory J. Wartman
A recent Pennsylvania federal court decision illustrates the importance of addressing an employee's allegations of sexual harassment and retaliation head on and being careful not to mischaracterize her allegations.
The court denied the employer's request that it dismiss a former employee's hostile environment sexual harassment, gender discrimination, and retaliation claims based solely on what it viewed as the employer's mischaracterization of the employee's allegations.
Jeannie Jackson was a driver for Hoopes Turf Farm, a trucking company, from at least 2009 until January 10, 2011, when she was terminated. After her termination, she filed charges against Hoopes for hostile work environment sexual harassment, gender discrimination, and retaliation with the Pennsylvania Human Relations Commission (PHRC) and the Equal Employment Opportunity Commission (EEOC). On May 30, 2012, the EEOC issued her a notice of right to sue. She then filed a lawsuit against her former employer in federal district court.
Jackson alleged that Hoopes' owner "subjected [her] to sexual harassment … on a consistent and daily basis" between December 2009 and July 2010. For example, she alleged that (1) he "stared directly at [her] crotch" while making an announcement during a Christmas party, (2) he made "wolf calls" to her, (3) he invited her to spend the night at his house because his wife was out of town, (4) he asked her "personal questions about her sex life, [told] her stories about sex and [made] inappropriate sexual comments," (5) he insisted that she, instead of a male employee, ride in the front seat with him, (6) he "placed his crotch against [her] hand," and (7) he left her voice-mail messages accusing her of playing "hard to get."
In mid-July 2010, Jackson told the owner that his behavior made her uncomfortable and asked him to stop. She alleged that he subsequently retaliated against her by refusing to pay her when her truck broke down, denying her lodging accommodations that he provided to male employees, forcing her to work longer hours than other employees, and canceling her work assignments without notice, among other things. When her truck later caught fire, Hoopes blamed her for the fire and terminated her.
The employer filed a motion to dismiss each of Jackson's claims for failure to allege facts sufficient to state a cause of action. The court denied its request.
Hostile work environment sexual harassment. To make a valid claim for hostile work environment sexual harassment, an employee must allege that (1) she suffered intentional discrimination because of her sex, (2) the discrimination was severe or pervasive, (3) the discrimination detrimentally affected her, (4) the discrimination would have detrimentally affected a reasonable person of the same sex in her position, and (5) there's a basis for employer liability.
At issue in this case was whether Jackson adequately alleged that the harassment was "severe or pervasive." The court ruled that the inquiry is circumstantial and stated it was "reluctant to dismiss a borderline case at the pleading stage."
The court found that Jackson's allegations—that the owner's continued "advances, sexually inappropriate banter, physical touching, and mistreatment of [her] after she rebuffed his advances"—were sufficient and pretrial dismissal wasn't appropriate. The court found that the employer's argument was based on a misrepresentation of her allegations, which the court stated was "a troubling habit … that is neither useful nor persuasive."
The court also denied the employer's motion to dismiss Jackson's gender discrimination claim because the company sought dismissal on the same grounds it alleged for the hostile work environment sexual harassment claim.
Retaliation. To make a valid retaliation claim, an employee must allege the following elements: (1) She engaged in activity protected by Title VII of the Civil Rights Act of 1964, (2) the employer took an adverse employment action against her, and (3) there was a causal connection between her participation in the protected activity and the adverse employment action.
Hoopes contended that Jackson didn't sufficiently establish a causal connection between her telling the owner that she was uncomfortable with his behavior and her termination five months later. The court ruled again that the employer mischaracterized her allegations—in particular, that the only adverse employment action she alleged was her termination.
The court ruled that adverse employment actions include not only termination but also conduct that is "harmful to the point that [it] could well dissuade a reasonable worker from making or supporting a charge of discrimination."
According to the court, Jackson's complaint adequately alleged that Hoopes engaged in several other adverse employment actions after she told the owner to stop his offensive behavior and before her termination. She therefore established a valid claim for retaliation. Jackson v. Hoopes Turf Farm, 2013 WL 5707790 (M.D. Pa., 2013).
This case reiterates two important lessons. First, because of the fact- intensive nature of the inquiry, federal courts are hesitant to dismiss a claim for hostile work environment sexual harassment for a lack of "severe or pervasive" harassment.
Second, when seeking dismissal for failure to state a valid claim, you should be cautious about how you characterize an employee's allegations. If the court believes you're mischaracterizing the employee's claims, you hurt your chances of prevailing on the dismissal request and risk damaging your credibility for later in the case.
Gregory J. Wartman (firstname.lastname@example.org) is a Partner at Saul Ewing LLP.