"In some cases, the fear of retaliation may not be nebulous at all; it may be very tangible, real and reasonable," reasoned the court.
Disputed fact issues as to whether an assistant principal was actually a teacher’s supervisor, whether he had taken tangible employment actions involving her, whether the school board should have known about his alleged sexual harassment of her after she tried to end their originally consensual relationship, and whether she reasonably feared that he would retaliate against her and the school board would not act all convinced a federal district court in Maryland to deny summary judgment on her state and federal sexual harassment claims. The court considered her delayed reporting in light of evidence that the assistant principal apparently had been leaked another anonymous sexual harassment complaint made against him and was never interviewed about it, as well as her claims that he threatened, assaulted, and raped her (Martinez v. Board of Education of Prince George’s County, August 21, 2020, Messitte, P.).
Tries to end relationship. The middle school language arts teacher began a consensual sexual relationship with the male assistant principal two years into her tenure. She claimed she tried to end the relationship after about five months, but he allegedly threatened her and told her that in exchange for sexual favors, he would help her gain a promotion. In fact, he did help her get promoted to the Instructional Lead Teacher position at the beginning of the next school year. In that role, he completed formal teacher observations of her, and when she attempted to again end the relationship, he threatened "to stop helping her with her career pursuits, [told] her she could not be with anyone else but him, and [warned] her that she did not know how aggressive he could be." He allegedly physically abused her and referred to her as a "whore," assaulted her, and later raped her. She did not report the rape at the time.
Don’t talk about that. Her allegations included being manipulated by the assistant principal to protect his reputation from other allegations of sexual harassment or sexual relationships with others, and requiring her to cover up for him in several investigations. She denied, when the principal asked her, that the two were in a relationship. He showed her another harassment complaint against him and told her to lie in that investigation. Almost 10 months after the alleged rape, she disclosed to the then-acting principal that the assistant principal was "doing bad things" to her and would "end [up] in jail." The teacher claimed the acting principal said she didn’t want to hear anything about that.
Finally complains. The assistant principal also allegedly asked the teacher to file a complaint against the former principal, which would claim the teacher witnessed the former principal sexually harass someone else, and which she refused to do. The teacher then complained again to the acting principal, this time specifically of sexual harassment. A few months later, over winter break, the teacher filed an official administrative complaint with the county and the EEOC, and followed it with an official complaint to the Board of Education and the police department. After the assistant principal refused to cooperate with the investigation in any way, he was placed on unpaid leave and eventually resigned. In the resulting litigation, the Board moved for summary judgment.
Disputed issues. The parties disputed whether or not the assistant principal was the teacher’s supervisor and whether he did (or did not) take tangible employment action against her; if he was her supervisor and did not take tangible employment action, whether the Board failed to prevent and correct any harassing behavior and whether the teacher failed to take adventive of preventive or corrective opportunities; and whether, if he was her coworker, the Board knew or should have known about his harassing behavior and failed to take action against it.
Assistant principal as supervisor. Although the Board argued that only the CEO had the exclusive authority to take tangible employment actions based on the Maryland education code, the court disagreed, suggesting the logical result of this argument would be that "the only supervisor in the entire Prince George's County Public Schools system is the CEO." Other code provisions clearly authorized the delegation of authority, which the teacher argued was the case here, citing the assistant principal’s documentation of her performance evaluations and his direct observation of her in the classroom. These facts were sufficient to create an issue of fact as to the assistant principal’s ability to take tangible employment action involving her, like her promotion, and whether he actually did.
Faragher/Ellerth defense. If a trier of fact did find that the assistant principal was a supervisor and the promotion was a tangible employment, the Faragher/Ellerth defense would not be available. But if the defense was available, the Board argued it had exercised reasonable care because it maintained a written anti-harassment policy that would effectively resolve harassment complaints and the teacher had unreasonably failed to take advantage of it: she didn’t even report the harassment before late November. In the teacher’s view, the Board was on notice of the assistant principal’s harassment in September, if not before, based on other anonymous complaints, but in any event the Board took no action until January. Besides, she claimed the Board failed generally to follow up on sexual harassment complaints.
Fear factor. Noting the process might have been defective "in the sense [the teacher] was too fearful" to officially report the harassment, the court pointed out every time she tried to end the relationship, the assistant principal allegedly threatened her, once raped her, told her to lie, and made her fearful for her job. The assistant principal allegedly even showed the teacher the sexual harassment complaint against him by another individual before she was interviewed as a potential witness and demanded she lie about it; that complaint said "the school system ‘is too vindictive to be trusted’ and rhetorically asked ‘[w]ho do you complain to when the man sexually harassing you tells you that his aunt is the Associate Superintendent?’"
The court asked how the assistant principal was leaked a copy of this complaint, and how did he immediately know what the teacher said when she was interviewed about it? "In some cases, the fear of retaliation may not be nebulous at all; it may be very tangible, real and reasonable," surmised the court, pointing out that details of the other sexual harassment investigation had been leaked to the assistant principal, and the Board never bothered to interview him in connection with this complaint. Accordingly, the court found material disputed fact issues as to the Faragher/Ellerth defense’s applicability, since a jury could conclude that it was not unreasonable for the teacher to not take advantage of the Board’s complaint processes.
Reasonable care. Finally, if the assistant principal was not a supervisor, it was still disputed whether the Board exercised reasonable care—whether it knew or should have known about the harassment and failed to take effective action to stop it. Here, said the court, despite the policy and procedures, the reporting environment could be found "not, in fact, hospitable." Suggesting that a factfinder could consider the Board to have been on notice when the first principal originally asked the teacher if she was in a relationship with the assistant principal, when the Board received the anonymous complaint of harassment by the assistant principal, or when the teacher complained to the acting principal that the assistant principal was doing "bad things" to her, the court denied summary judgment on the teacher’s sexual harassment claims.
The case is No. PJM 19-0169.
Attorneys: Pamela Lewis Ashby (Jackson & Associates Law Firm) for Elizabeth Martinez. Lisa Y. Settles (Pessin Katz Law) for School Board for Prince George's County, Maryland.
Companies: School Board for Prince George's County, Maryland
Cases: Discrimination SexualHarassment StateLawClaims PublicEmployees GCNNews MarylandNews
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