School employee advances hostile environment claim based on former supervisor’s continued harassment after promotion
Tuesday, February 4, 2020

School employee advances hostile environment claim based on former supervisor’s continued harassment after promotion

By Kathleen Kapusta, J.D.

The employee alleged her supervisor sexually harassed her and when she refused his advances, he retaliated against her first as her immediate supervisor and then later as the school district superintendent.

Although the alleged sexual harassment by her boss stopped when the school district employee was transferred to a new job, her allegations that when he later became superintendent, he put her on his "hit list" and instructed her new supervisor to find a way to fire her were sufficient to create a fact issue as to whether all the acts of harassment were connected. And because at least one of the alleged acts occurred within the statutory timeframe, the court denied summary judgment on her Title VII and state law hostile work environment claims. Her FMLA interference claim also advanced as did several retaliation claims but her race and national origin based claims failed (Jimenez-Ruiz v. School Board of Sarasota County, January 28, 2020, Jung, W.).

The technical college assistant executive director, who had been hired in 2014, alleged that her supervisor sexually harassed her and when she refused his advances, he retaliated against her. When he suggested she transfer to another school, she agreed. But instead of a transfer to her preferred, she was transferred to an assistant principal job in 2016, which she viewed as a demotion.

Hit list. She told her new supervisor, the school principal, about her former supervisor’s harassment and because her former supervisor was being considered for district superintendent position, the school board hired an outside investigator, who determined that the employee’s allegations were unfounded. Selected as the new superintendent in October 2016, the supervisor took office in March 2017. At that point, the employee alleged, he placed her on his "hit list" and began pressuring the principal not to renew the employee’s contract.

EEOC charge. According to the employee, the principal then began making derogatory comments about her national origin, criticizing her performance, and giving her difficult tasks. As a result, she was diagnosed with PTSD, depression, and generalized anxiety disorder in October 2017. She went on FMLA leave and although she submitted an internal complaint, another investigation again determined that her allegations were unfounded. In December 2017, she filed an EEOC charge alleging sexual harassment and retaliation by the superintendent and retaliation by the principal.

She returned to work part time in January 2018 and in March, she received a "needs improvement" rating on her mid-year evaluation. The employee contested the evaluation and was given the chance to provide evidence at two meetings, one in April and one in May. At the April meeting, however, the principal purportedly told her the May meeting was canceled and her contract would not be renewed. The employee then filed the first of three additional EEOC charges.

Hostile work environment. The school board first argued that the alleged incidences of harassment and retaliation were time barred as they fell outside the statutory timeframe for Title VII and the Florida Civil Rights Act. Because the employee filed her first charge in December 2017, all acts of alleged discrimination and retaliation before February 24, 2017, were time-barred under Title VII and all alleged acts of discrimination and retaliation before December 20, 2016 were time-barred under the FCRA.

Cumulative effect. The employee, however, argued that her harassment claims were not based on discrete acts but rather on the cumulative effect of the acts, which created a hostile work environment. Although her supervisor’s harassment would have presumably stopped when she transferred out of the technical college, and that conduct was outside the applicable statutory timeframe, it was disputed whether the harassment permanently ended. Her allegations that after he became superintendent, he put her on his hit list and pressured the principal to fire her were within the statutory period. And although there was a gap in the superintendent’s alleged harassment, it was a result of his losing his power to harass her, she contended, claiming that when he became superintendent, he again started to harass her. Thus, said the court, she presented enough evidence within the statutory timeframe to create a fact issue as to whether she was subjected to a hostile work environment.

And while the employer argued that most of the alleged conduct had nothing to do with her gender, the court found that when viewed together, the actions all related to harassment based on her sex. Because there was a fact question as to whether the acts were actually connected, the court denied summary judgment on this claim.

Race and national origin bias. Her Title VII and FCRA race and national origin based claims failed, however, as she pointed only to four comments by the principal in her presence allegedly making fun of her accent and two comments by coworkers regarding the principal’s attitude toward Hispanic people that were made over the course of a year. This was simply not enough to support her hostile work environment claim.

FMLA interference. As to her FMLA interference claim, the employee argued that she was punished for taking leave because when she returned, not only were her duties curtailed by the principal, her job performance was judged without taking her leave into consideration, which led to the decision not to renew her contract. Although the employer argued that these decisions were not influenced by the employee’s leave, the court found a fact issue best left for a jury to decide.

Title VII and FCRA retaliation. Turning to the employee’s retaliation claims based on her objection to the alleged sexual harassment, the employer argued that the large gap in time between her complaints and her termination precluded a finding of but-for causation. But before the superintendent assumed the office in March 2017, he had no ability to retaliate against the employee while she was at the high school. After becoming superintendent, however, he presumably again had the power to retaliate against her. By influencing the performance evaluation and contract nonrenewal processes, he placed "the opportunity to retaliate against her on a longer timeline," observed the court, which was further extended by her FMLA leave.

And while the employer claimed it had legitimate concerns with her performance, the employee argued that the principal, through handwritten notations on the paper copy of her performance review, changed "effective" to "needs improvement" in some areas. Whether these changes were pretextual was a disputed fact issue, said the court, denying summary judgment against this claim as well.

FMLA retaliation. Pointing out that the negative performance review and contract nonrenewal were closer in time to the employee’s FMLA leave than to her sexual harassment complaints, the court found disputed issues of material fact also precluded summary judgment on her FMLA retaliation claim.

The case is No. 8:18-CV-01768-T-02-AEP.

Attorneys: Monica Michele Leach-Pachinger (Leach-Pachinger Law & Mediations) for Lyna Jimenez-Ruiz. Cayla McCrea Page (Greenberg Traurig) for Sarasota County School Board.

Companies: School Board of Sarasota County

Cases: SexDiscrimination SexualHarassment Retaliation EmployeeLeave Discharge StateLawClaims Procedure FloridaNews

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