By Brandi O. Brown, J.D.
Even though the employee who sexually harassed the plaintiff was transferred and suspended after her initial report, the employer’s failure to prevent him from discussing her allegations and making allegations about her behavior to other employees could lead a jury to find it liable.
In a lawsuit filed by a female Department of Corrections employee based on her treatment before and after she complained of sexual harassment, a federal district court in Mississippi denied in part the defendants’ motions for summary judgment. Although the employer contended that it had acted quickly to end the harassment, the evidence regarding the fallout after her complaint could lead a jury to conclude otherwise. The accused employee complained loudly and frequently about her allegations and told coworkers that she had sent him pictures of her in his underwear. However, beyond the plaintiff’s claims for sexual harassment against two of the defendants, the court granted most of the defendants’ motions. Thus, the motions for summary judgment were granted in part (Underwood v. Mississippi Department of Corrections, July 13, 2020, Ozerden, H.).
Harassed, complained. In late October 2016 the plaintiff, a female field worker for the Mississippi Department of Corrections who helped monitor parolees and probationers, reported to her supervisor that a male coworker was harassing her. She reported that he sent her numerous text messages about his feelings for her and grabbed her and hugged her when they were alone. After her initial complaint, the harassment continued and she complained again a few days later. The next day her coworker was transferred to another office and the department investigated her allegations. As a result, the coworker was permanently reassigned to a different office and was suspended for 15 days without pay.
Rumors, alienation, and complaints. The male coworker was told to have “no contact” with the plaintiff, but he was not forbidden from discussing her complaints with other employees or from retaliating against her. He told their coworkers that she was trying to get him fired and that they should “watch out” for her. He told them that she had texted him pictures of herself wearing only underwear. According to the employee, following his campaign against her with the other employees, her coworkers stopped talking to her. She complained about it and, according to the defendants, they told the employees to stop discussing her.
Nevertheless, the employee’s coworkers began reporting instances of alleged misconduct to her supervisor, which he then passed on to his superiors, including allegations that she had overdosed on drugs, that she was having sex with offenders, that she was stealing and/or taking money from parolees. She was transferred to a different county, which was further away, because she was denied access to a particular jail. Later, she was transferred again. She filed an EEOC charge in 2017 and ultimately filed suit against the Department, a Department official, her harasser, and her supervisor. They moved for summary judgment.
Sexual harassment claims remain. In moving for summary judgment, the defendants launched two major attacks against the employee’s sexual harassment claims: first, that she raised claims that were not in her first amended complaint and second, regarding the merits, that the post-complaint behaviors were not based on sex and that the employer took prompt remedial action with regard to the behavior that was. The first argument was rejected, as was an argument that the employer was unaware of the post-harassment-complaint behavior because it ignored the fact that the employee reported it to multiple individuals, including her supervisor and the attorney handling the employer’s investigation.
Based on sex. As to the merits of her sexual harassment claim, which the plaintiff raised under federal and state laws and against all of the defendants, the court concluded that the claims against the Department and the individual defendant named in her official capacity should proceed. The claims against the harasser and her supervisor would not. With respect to whether the harassment was based on sex, neither party argued that the pre-complaint conduct by the coworker, including his text messages, were not based on sex. Instead, they argued that the post-complaint conduct, including his conversations with coworkers, was not based on sex.
The court found that the employee set forth sufficient evidence to create a material fact question in that regard based on the rumors the coworker spread about her sending him pictures of herself in her underwear. “This conduct involves the implicit proposal that Underwood was involved, or was attempting to become involved,” the court explained, “in some sort of sexual activity with Davis.” A reasonable jury could determine that the coworker would not have engaged in the same conduct had the plaintiff not been someone of the opposite sex.
Remedial action? Moreover, a jury could conclude that although the employer took some remedial action, it failed to prohibit the harasser from discussing the matter with others, leading to further harassment. In fact, he discussed it with several coworkers, telling them that she had made false reports against him and others and that she had sent him risqué photographs. When the employee reported this post-complaint conduct, the employer took no steps to investigate, to discipline him, or to provide additional sexual harassment training. Instead, the supervisor told employees a “couple of times” to “stop talking about each other and things that you don’t know to be true.” The same supervisor sent up the chain incident reports given to him by her coworkers.
Defamation and retaliation claims out. The employee’s claim of retaliation, however, will not go to a jury. The court found that she could not show that she experienced an adverse employment action under Fifth Circuit precedent based on the coworkers’ complaints and behavior towards her. The temporary transfer to a county further away was based on a legitimate, non-retaliatory reason, the court explained. Her defamation claim against her supervisor also failed because the employee did not allege or identify any specific person to whom her supervisor made the slanderous comments, nor did she submit evidence establishing the content of those statements.
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