Employment Law Daily Failure to complain of harassment for years could have been reasonable
Monday, January 18, 2016

Failure to complain of harassment for years could have been reasonable

By Kathleen Kapusta, J.D. In raising a Faragher-Ellerth defense to an employee’s sexual harassment claim, a county employer chose a fact-intensive route in trying to dispose of the case, said a federal district court in Pennsylvania in denying the county’s motion for judgment on the pleadings. Noting that “what the county knew, when it knew it, and what it did in response,” as well as what the employee did or did not do during the almost three-year period of time in which she alleged her supervisor sexually harassed her were key factual elements of the defense, the court found it could not say that the defense was definitely ascertainable from or established with certitude by the pleadings (Minarsky v. Susquehanna County, January 13, 2016, Mariani, R.). The employee alleged that shortly after she was hired in 2009, her supervisor learned she needed the job to pay for her daughter’s medical bills and used her financial position to sexually harass her without fear of her reporting his actions. She claimed he repeatedly tried to kiss, touch, and hug her without her permission, called her at home, and acted “possessively” toward her in the office. Complaint and termination. In a July 2013 email, she told him she was uncomfortable with his actions and stated “I don’t think this is appropriate at work, and I don’t want to go to Sylvia. I would rather resolve this ourselves.” The supervisor was fired a week later after a female department head complained on the employee’s behalf. The employee subsequently sued both the county and the supervisor under Title VII and state law asserting, among other things, claims of sexual harassment. Arguing that the employee admitted she did not report any of the alleged harassment, that it had a written policy advising employees on how to report sexual harassment, and that it only learned of the supervisor’s behavior in July 2013 after which it terminated him, the county asserted that it was entitled to the Fargher-Ellerth affirmative defense and thus to judgment on the pleadings. Observing, however, that “there is much that remains uncertain about what occurred within the offices of Susquehanna County government from late 2009 until mid-July 2013,” the court found that it could not say as a matter of law that the county exercised reasonable care to avoid harassment and to eliminate it when it might occur and that the employee failed to act with like reasonable care to take advantage of the employer's safeguards and otherwise to prevent avoidable harm. Past warnings. The county admitted the supervisor had been verbally warned in the past regarding two discrete incidents, observed the court. Depending on the nature of those complaints and the county’s interaction with the employee and supervisor, a jury could determine that it did not act with sufficient care and diligence to avoid further harassment of employees. A plaintiff’s significant delay in reporting harassment is not necessarily unreasonable, said the court, finding the complaint here averred sufficient facts, such as the lack of action beyond verbal warnings taken on prior complaints, to raise the inference that the employee’s failure to complain was reasonable. And while the county also argued that the employee’s statement in her July 2013 email that “she didn’t want to go to Sylvia” about the harassment suggested she was aware of its sexual harassment policy and that she deliberately decided to refrain from availing herself of it, the court refused to make this inferential step where there was no evidence the policy was actually in place during the relevant time period and where there were factual disputes as to whether it was reasonable for her to avail herself of the policy if it did indeed exist. Noting that a court should only grant a motion for judgment on the pleadings if it is clear that the merits of the controversy can be fully and fairly decided in a summary manner, the court declined to grant the county’s motion.

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