Tuesday, May 20, 2014

Amicus brief addresses retaliation and sexual harassment

Last week, I filed an amicus brief on behalf of the Metropolitan Washington Employment Lawyers Association (MWELA) in Foster v. University of Maryland Eastern Shore (UMES). I volunteered to write this brief because this case addresses the effect of last year's Supreme Court decision in University of Texas Southwestern Medical Center v. Nassar. Attorneys Denise Clark and Ellen Renaud joined with me in writing the brief.

In Nassar, five justices held that employees who face retaliation because of their opposition to discrimination, or their participation in civil rights proceedings, must prove that their protected activity was the "but-for" cause of the retaliation. Previously, the courts had only required employees to prove that the protected activity was a motivating factor in the reprisal.

At UMES, management received a complaint in 2002 that a police supervisor, Rudolph Jones, had sexually harassed a female officer. UMES' human resource (HR) manager decided that the complaint lacked merit and chose to do nothing about it.

In 2007, UMES hired Ms. Foster as a new officer. Although Mr. Jones was not her direct supervisor, he nevertheless started pestering her for sex. One time he hugged her from behind. Another time he kissed her without permission. After she refused him, he said that he was friends with the police chief and he could get officers fired.

Foster complained to the police chief who took no action against Jones and wrote a false record of his meeting with Foster. Foster complained to the HR manager who investigated and found corroboration for Foster's complaint, even though Jones denied it. Management decided to talk to Jones, but Foster's work environment became even more hostile. The chief began to switch her work hours, even switching them back and forth. Foster complied, but the chief neverthess fired her for being "inflexible." 

Foster sued for both sexual harassment and retaliation. A magistrate judge dismissed the sexual harassment claim saying that UMES effectively stopped Jones from further harassment after Foster complained.  However, the magistrate judge held there was enough evidence to let the retaliation case go to trial. That magistrate judge became a full judge, and the new magistrate judge decided to reconsider the retaliation claim.  This magistrate judge said that with Nassar, there was not enough evidence for any trial at all.

Foster appealed to the Fourth Circuit Court of Appeals. Our amicus brief argues 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 more recent 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. Also, just two weeks ago, the Supreme Court said it was wrong for courts to dismiss cases when there is a conflict about the true facts (Tolan v. Cotton).

The amicus brief describes how direct evidence is still sufficient. Jones and the HR manager both connected Foster's termination to her protests. Also, evidence of pretext, circumstantial evidence, attempts to enforce a chain-of-command, and participation in internal proceedings can all support a claim of retaliation.

As to the sexual harassment claim, MWELA's amicus brief argues that UMES should bear responsibility when it decided Jones engaged in no harassment, and then he harassed again. Courts should not accept the ‘see no evil, hear no evil’ strategy. Also, the hostility Foster faced after complaining shows that her complaint was not as effective as the lower court claimed. Employers should be liable when they choose to go after the messenger instead of addressing the message.

The case is Foster v. UMES, No. 14-1073, pending at the Fourth Circuit.

By Richard Renner

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