This month, the U.S. Court of Appeals for the Fourth Circuit issued two watershed decisions advancing the rights of employees to be free of harassment and retaliation.
On May 7, 2015, the full court (sitting “en banc”) reinstated the racial harassment claims of Reya Boyer-Liberto. The court recognized that it was changing the court’s past requirements for harassment claims. The court now recognizes that even a single incident of harassment may be actionable if it is sufficiently serious.
On May 21, 2015, a three-judge panel reinstated the retaliation claims of Iris Foster. The court held that a Supreme Court decision requiring retaliation to be the “but for” cause of an adverse action does not change the ways employees can show their right to a trial on their retaliation claims.
In September 2010, Reya Boyer-Liberto worked as a cocktail waitress at the Clarion Resort Fontainebleau Hotel in Ocean City, Maryland (the “Clarion”). She is African-American. A Caucasian manager twice called her a “porch monkey” and threatened her job. After Boyer-Liberto reported this harassment to higher-ups at the hotel, its owner fired her.
When Boyer-Liberto sued, the judge dismissed her case, relying on the Fourth Circuit’s 2006 decision in Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006). In Jordan, the court affirmed the dismissal of a racial harassment claim involving another racist remark comparing African-Americans to monkeys. “[N]o objectively reasonable person could have believed that, in reporting the incident to management, Jordan was opposing an unlawful hostile work environment,” the court said in Jordan.
Boyer-Liberto appealed. Initially, two of the three judges voted to affirm the dismissal of her claims. However, this time the full court agreed to review the decision.
The Fourth Circuit now says that “an isolated incident of harassment, if extremely serious, can create a hostile work environment.” Therefore, reporting the incident can also be protected from retaliation. The court recognized that it was overruling Jordan.
Salisbury, Maryland, attorney Robin Cockey represented Boyer-Liberto through this long ordeal. Attorneys Stephen Z. Chertkof and Douglas B. Huron of Heller, Huron, Chertkof & Salzman, Washington, D.C., and Ilana Gelfman and Francis D. Murnaghan of the Public Justice Center in Baltimore, Maryland, wrote an amicus brief for the Metropolitan Washington Employment Lawyers Association (MWELA) and the Public Justice Center. The federal Equal Employment Opportunity Commission (EEOC) also submitted an amicus brief.
The Foster case began in 2007 when the University of Maryland Eastern Shore (UMES) hired Iris Foster to be a campus police officer. Even before she started, supervisor Rudolph Jones began sexually harassing her. He spied on her while she was fitted for a new uniform. After she started, Jones made lewd and suggestive comments, kissed her, pinched her and hugged her without her permission. We earlier described his conduct as “pestering her for sex”.
Attorneys Denise Clark and Ellen Renaud (from the Swick & Shapiro firm) of Washington, DC, joined me in writing an MWELA amicus brief in support of Iris Foster’s claims.
Last week, the Fourth Circuit panel agreed that the Supreme Court’s holding in University of Texas Southwestern Medical Center v. Nassar is not as broad as the lower court thought. We argued in an amicus brief to the court that while Nassar set the standard of causation, it did not affect the existing law about the methods of proving retaliation. We were aided by the Supreme Court’s decision in Burrage v. U.S., in which the Court said that a “but-for” cause only has to be the straw that broke the camel’s back.
In Foster, the court’s panel limited its analysis to upholding the famous McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), burden-shifting analysis. The court uses this analysis to decide if a plaintiff has presented enough evidence to warrant a trial. While the Supreme Court has explained that this analysis is just one of many ways to prove unlawful discrimination (see Furnco Construction Corp. v. Waters, 438 U.S. 567, 577 (1978)), the Fourth Circuit omits this point.
Still, the court makes clear that Nassar would not have modified the McDonnell Douglasanalysis without saying so explicitly. Since the Nassaropinion does not say it was modifying McDonnell Douglas, then the Fourth Circuit will continue to utilize McDonnell Douglas. While our amicus had suggested that this outcome flows naturally from the remedial purpose of the Civil Rights Act, the Fourth Circuit’s more limited reasoning is still plenty sufficient to reinstate Foster’s retaliation claim.
In footnote 10, the opinion notes that other circuits have split on the issue, with the Second and Fifth Circuits agreeing that Nassar does not affect analysis of a prima facie case, and the Tenth Circuit disagreeing. The Sixth and Eleventh Circuits have issued decisions going both ways.
Causation in retaliation cases can be established in a variety of ways. One common method is through temporal proximity. If the boss fires you shortly after you raise a concern about complying with the law, then a jury can conclude that you were fired because you raised that concern.
In footnote 16, the court accepts an argument that Foster’s attorney and our amicus made: temporal proximity can be measured from any protected activity – not just the first protected activity. The court rejected a claim by the employer that temporal proximity should not apply because Foster made her initial complaint of sexual harassment many months before she was fired. Since Foster had made a new complaint of retaliation in scheduling shortly before her termination, the court found temporal proximity does support her claim of causation.
Sadly, the court did not reinstate Foster’s original claim of sexual harassment. It found that UMES did not have to take any action in response to a prior employee’s sexual harassment complaint against Jones, because a state agency had dismissed that complaint. Also, the court found that the employer’s action of telling Jones to stop, and separating him from Foster, was sufficient to get the harassment to stop. Still, the court did reaffirm the holding in Paroline v. Unisys Corp. that employers will be liable when they have knowledge of an employee’s prior harassment and should have anticipated that he would commit future harassment against the plaintiff.
The overall outcome is very positive for Iris Foster who now will get her day in court to hold UMES accountable for her termination. Washington, DC, attorney Leizer Goldsmith represented Foster throughout this case.