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Opinions – 8/29/11: 4th U.S. Circuit Court of Appeals

Labor & Employment

Sexual harassment

BOTTOM LINE: There existed a genuine issue of material fact as to whether assistant was subject to a hostile work environment, where assistant alleged that her supervisor repeatedly propositioned her to have sex with him, made sexual remarks and overtures to her, and ultimately fired her after she filed a sexual harassment complaint.

CASE: Okoli v. City of Baltimore, No. 08-2198, (decided Aug. 8, 2011) (Judges King, GREGORY & Wynn). RecordFax No. 11-0808-60, 29 pages.

COUNSEL: April Dawson, North Carolina Central University School of Law, Durham, N.C., for Appellant. David Ralph, Baltimore City Department of Law, Baltimore, Md., for Appellee.

FACTS: In June of 2004, John Stewart, the director of Baltimore’s Commission on Aging and Retirement (“CARE”), hired Katrina Okoli, an African-American woman, to serve as his executive assistant. Beginning in September 2004, Stewart began propositioning Okoli to have sex with him. Okoli responded negatively to Stewart’s sexual remarks and advances. In November of 2004, Okoli met with a manager about transferring to another department.

On January 10, 2005, Stewart asked Okoli to come back in a conference room, then forcibly grabbed and kissed her. Okoli pushed him away and ran out the door. She was so distraught that she went home and remained there for the day. When she returned to work the next day, Okoli stressed to Stewart that she wanted to have only a professional relationship. Nevertheless, later that day, Stewart reiterated to Okoli one of his sexual fantasies.

Okoli began reaching out for help in various ways, but to no avail. On January 26, 2005, Okoli emailed Alvin Gillard, the Executive Director of the Baltimore Community Relations Commission, asking to speak with him about “a complaint.” Gillard never responded. On March 23, 2005, Okoli emailed Gillard with a “high” importance flag, stating her desire to “file a harassment complaint against my supervisor, Mr. John P. Stewart.” Gillard suggested that she speak with an intake specialist during work hours. Okoli also emailed Michael Enright, the First Deputy Mayor, as well as Clarence Bishop, the Mayor’s Chief of Staff, with a “high” importance request to meet with the Mayor as soon as possible. On April 1, 2005, Okoli sent a formal complaint to Mayor Martin O’Malley, copying Michael Enright and Clarence Bishop. Enright promptly forwarded that complaint on to Stewart through Enright’s special assistant, Colm O’Comartun. Later that afternoon, Stewart fired Okoli.

On April 3, 2005, Okoli approached Mayor O’Malley after a public speech and asked if he had reviewed her complaint; he said he had not, but that he would have someone look at it. In an April 5, 2005 memo to the Mayor, Stewart stated generally that he had “never been accused” of such sexual harassment in the past and denied the allegations in Okoli’s April memo. On April 5, Okoli met with a City human resources official, Kathy Phillips. Phillips concluded her written summary of the meeting by stating, “I think this goes without saying but I strongly recommend that due to the nature of these allegations, a thorough investigation is necessary. It should be referred to an EEO Officer.”

On April 29, 2005, Okoli repeated the same allegations to Yolanda Winkler in the Mayor’s office, who referred her to the Baltimore Community Relations Commission (BCRC). On May 5, 2005, Okoli filed a charge of discrimination with the BCRC, claiming harassment, retaliation, and “unsolicited inappropriate touching.” On July 3, 2005, the Commission dismissed the action for lack of probable cause that Okoli had been discriminated against. On September 26, 2006, Okoli initiated a pro se action against Stewart, Enright, O’Comartun, the Mayor, CARE, and the City Council of Baltimore (collectively, “the City”). She asserted claims under Title VII, 42 U.S.C. §§1983, 1985, 2000e, common law, and Article 4 §3-1 of the Baltimore City Code.

On November 16, 2006, the City filed a notice of removal to federal court, where Okoli amended her complaint. Both parties moved for summary judgment. The district court granted the City’s motion.

Okoli appealed to the 4th Circuit, which reversed the ruling of the district court and remanded the case for trial.

LAW: Okoli first alleged that she was subject to a hostile work environment. To demonstrate sexual harassment and/or a racially hostile work environment, a plaintiff must show that there is: (1) unwelcome conduct; (2) that is based on the plaintiff’s sex and/or race; (3) which is sufficiently severe or pervasive to alter the plaintiff’s conditions of employment and to create an abusive work environment; and (4) which is imputable to the employer. Mosby-Grant v. City of Hagerstown, 630 F.3d 326, 334 (4th Cir.2010).

In this case, the third factor was dispositive: whether Stewart’s treatment was severe or pervasive enough to sustain Okoli’s claim of hostile work environment. The City contended that it was not, characterizing Stewart’s conduct as sporadic and infrequent, depicting Stewart as promptly stopping this conduct once Okoli objected, and questioning whether some of Stewart’s comments and gifts were sexual at all.

Overall, Okoli presented a strong claim for hostile work environment. Maryland law requires a reviewing court to look to the totality of the circumstances, including the frequency of the discriminatory conduct, its severity, and whether it unreasonably interferes with an employee’s work performance. Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998). Viewing the facts in the light most favorable to Okoli, she suffered upwards of twelve (12) incidents in just four months as a result of Stewart’s comments and conduct: (1) disparaging jokes about gays and lesbians; (2) comments about Okoli and Stewart’s Jacuzzi fantasy; (3) comments about Okoli and Stewart’s group sex fantasy; (4) questions about Okoli’s underwear; (5) comments about sexual relations with another African-American woman; (6) additional inquiries about Okoli sitting on Stewart’s lap and a Jacuzzi fantasy; (7-10) three incidents in which Stewart fondled 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. Functionally, these incidents span fondling, kissing, propositioning, describing sexual activities, and asking intimate questions. Some of the incidents were arguable severe enough to be actionable in and of themselves.

Collectively, Okoli was subjected to repeated propositioning and physical touching. By any objective and reasonable standard, the allegations here were far beyond simple teasing and offhand comments. Faragher, 524 U.S. at 788. Moreover, Stewart’s alleged conduct was much more than “generalized statements that pollute the work environment.” Rather, they clearly constituted personal gender-based remarks that singled out an individual (Okoli) for ridicule. EEOC v. Fairbrook Med. Clinic, 609 F.3d 320, 328-29 (4th Cir.2010). Indeed, the conduct here was arguably at least as severe as conduct Maryland courts have previously deemed to be actionable. See, e.g., Mosby-Grant v. City of Hagerstown, 630 F.3d 326, 336 (4th Cir.2010). Moroever, there was a significant disparity in power in that Stewart was a political appointee who sat in the Mayor’s cabinet and headed 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. Furthermore, the sexual advances here were more numerous and explicit than Beardsley v. Webb, which Okoli cited. In Beardsley, a hostile work environment was found to exist when, over six months, a supervisor massaged an employee’s shoulders, stated he wanted to “make out” and “have his way” with her, falsely accused her of having an affair, and asked her about her underwear, birth control, and the bodily effects of taking maternity leave. Beardsley v. Webb, 30 F.3d 524, 528-29 (4th Cir.1994).

The district court’s reasoning was also flawed in two other ways. First, the court over-emphasized the role of Stewart’s gifts in light of the extensive remarks and touching here. While some of those gifts, such as a holiday card, flag, or tea set, might seem innocuous when viewed alone or out of context, a court’s legal analysis requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81 (1998). A gift which might seem harmless in the abstract can have sexual connotations when delivered with a suggestive comment or sexual allusion. Second, the district court reasoned that Stewart’s advances could not have interfered with Okoli’s work because Ocali had a high opinion of her own performance. However, this interpretation conflated aspects of Stewart’s hostile work environment and retaliation claims. Okoli could 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. Indeed, the fact that a plaintiff continues to work effectively under difficult conditions is to the plaintiff’s credit, not the harasser’s. EEOC v. Fairbrook Med. Clinic, 609 F.3d at 330.

Overall, when objectively viewing the severity of harassment from the perspective of a reasonable person in the plaintiff’s position, Okoli presented a strong claim for hostile work environment. As such, the district court erred in granting summary judgment in favor of the City.

Accordingly, the district court’s grant of summary judgment was vacated and the case remanded.

COMMENTARY: Okoli also claimed that she experienced quid pro quo discrimination. A plaintiff seeking to prove quid pro quo discrimination must prove five elements, including that the employee’s reaction to the harassment affected tangible aspects of the employee’s compensation, terms, conditions, or privileges of employment. In this case, the inquiry turned on the question of whether Okoli’s reaction to Stewart’s advances affected “tangible aspects” of her employment.

The most “tangible” employment action taken by Stewart was Okoli’s allegation that Stewart fired her for rejecting his advances and complaining about his conduct. It was deeply suspicious that Stewart fired Okoli only hours after she culminated her rejection of him by complaining to the Mayor, and there was little in the record to suggest that Okoli would have been fired for the occasional error or absence, notwithstanding her “at-will” employment status. As such, Okoli presented more than an adequate claim that her complaint was causally connected to the employer’s adverse action.

Accordingly, the district court judgment was reversed and the case remanded to a jury to assess and resolve Okoli’s claims.

PRACTICE TIPS: Sexual harassment complaints need not include certain “magic words” such as “sex” or “sexual” in order to be effective. Thus, an employee need not label the events “sexual harassment” in order to place an employer on notice of the offending behavior.

Labor & Employment

Standing under the Fair Labor Standards Act

BOTTOM LINE: Plaintiff was not entitled to bring an action against a prospective employer under the Fair Labor Standards Act because an employment applicant is not an “employee,” and only employees can sue their current or former employers for retaliation under the statute.

CASE: Dellinger v. Science Applications International Corporation, No. 10-1499 (decided Aug. 12, 2011) (Judges NIEMEYER, King & Keenan). RecordFax No. 11-0812-60, 21 pages.

COUNSEL: Zachary Kitts, Cook, Kitts & Francuzenko, PLLC, Fairfax, Va., for Appellant. Dean Rom-hilt, United States Department of Labor, Washington, D.C., for Amici Supporting Appellant. Robert Sparks, Jr., Sparks & Craig, LLP, McLean, Va., for Appellee.

FACTS: Natalie Dellinger commenced this action under the Fair Labor Standards Act of 1938 (“FLSA”) against Science Applications International Corporation. Dellinger alleged that the corporation retaliated against her, in violation of the FLSA’s anti-retaliation provision, 29 U.S.C. §215(a)(3), by refusing to hire her after learning that she had sued her former employer under the FLSA.

The district court granted the corporation’s motion to dismiss, concluding that Dellinger was not an “employee” of Science Applications, as defined in the FLSA, and that the FLSA’s anti-retaliation provision did not cover prospective employees.

Dellinger appealed to the 4th Circuit, which affirmed.

LAW: The Fair Labor Standards Act of 1938 regulates the relationship between employers and their employees, to correct and as rapidly practicable to eliminate the existence, in industries engaged in commerce or in the production of goods for commerce, of labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers. 29 U.S.C. §202. To this end, the Act establishes a minimum wage that every employer shall pay to each of his employees, as well as maximum hours for employees, providing that no employer shall employ any of his employees for a work-week longer than forty hours unless the employee receives overtime pay at one and one-half times the regular rate. 29 U.S.C. §§206, 207(a). These duties are imposed on employers and the beneficiaries are the employers’ employees. In addition, the FLSA protects these substantive rights by prohibiting retaliation, which it defines in relevant part as discrimination against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter. Id. §215(a)(3).

Here, Dellinger did not sue her actual employer, but rather a prospective employer for retaliation. Specifically, she alleged that Science Applications, her prospective employer, retaliated against her because she had sued a former employer under the FLSA. Thus, Dellinger’s complaint presented the question of whether an applicant for employment is an “employee” authorized to sue and obtain relief for retaliation under §216(b).

Consistent with the FLSA’s purpose to regulate the employer-employee relationship and the relevant text of the Act, only employees can sue their current or former employers for retaliation under the FLSA and that an applicant is not an employee.

Section 215(a)(3) prohibits retaliation “against any employee “ because the employee sued the employer to enforce the Act’s substantive rights. An “employee” does not, in the Act, exist in a vacuum; rather, an “employee” is defined in relationship to an employer. Section 203(e)(1) provides that an employee is “any individual employed by an employer.” Thus, by using the term “employee” in the anti-retaliation provision, Congress was referring to the employer-employee relationship, the regulation of which underlies the Act as a whole, and was therefore providing protection to those in an employment relationship with their employer. Consistent with this context in which § 215(a)(3) protects only employees.

Thus, Dellinger would have standing to sue Science Applications only if she could show that she was an employee and that Science Applications was her employer. However, Dellinger could not make that showing. Although she was an applicant for employment with Science Applications and her application had been approved on a contingent basis, she never began work. An applicant who never began or performed any work could not, by the language of the FLSA, be an “employee.” Because the text and purpose of the Fair Labor Standards Act of 1938 link the Act’s application closely to the employment relationship and because the text of the applicable remedy allows for private civil actions only by employees against their employers, the FLSA anti-retaliation provision, 29 U.S.C. §215(a)(3), did not authorize prospective employees such as Dellinger to bring retaliation claims against prospective employers.

Accordingly, the judgment of the district court was affirmed.