Interesting harassment / speech case?

Michael R. Masinter masinter at nova.edu
Tue Oct 27 07:24:26 PDT 2009


Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), Faragher  
v. City of Boca Raton, 524 U.S. 775 (1998), and Pennsylvania State  
Police v. Suders, 542 U.S. 129 (2004) all hold that harassment that  
culminates in a supervisor's tangible employment act violates Title  
VII without regard to whether the harassment preceding the tangible  
employment action created a hostile work environment.

29 C.F.R. § 1614.107 only authorizes dismissal of an administrative  
complaint that fails to state a claim for relief under liberal notice  
pleading standards in a proceeding in which the complainant  
customarily files pro se.  Even judicial pleadings drafted by counsel  
require no more than allegations that create a plausible basis in fact  
for liability; pleadings need not even plead a prima facie case to  
survive dismissal. Swierkiewicz v. Sorema, 534 U.S. 506 (2002). Given  
that the EEOC decision establishes only that the employee's complaint  
is sufficient to begin an administrative process that may or may not  
culminate in liability, it seems reasonable to read the statement in  
the EEOC decision that the supervisor's decision to remove the  
complainant from light duty work as playing some role in the EEOC's  
decision.  After all, this is all EEOC wrote as its reasoning, and its  
first sentence should not be read in isolation from its second and  
third sentence:

Upon review of the record, we find that complainant has alleged  
sufficient facts to state a claim of harassment. In addition to the  
statements made and shirts worn by CW1 and CW2, complainant also  
alleged that she was taken off of light duty work. Accordingly, we  
find that complainant alleged that the harassment altered the  
conditions of her employment. Accordingly, we find that complainant's  
claim of harassment is actionable.

As for the sufficiency of the recited evidence as circumstantial proof  
of the supervisor's state of mind, that's not generally a pleadings  
based decision in statutory employment discrimination litigation; we  
have not yet returned to a code pleading standard requiring the  
allegation of ultimate facts even in a post Twombley/Iqbal world.

I recognize that a claim for pure hostile environment / no tangible  
effects liability may still be in play, but given the claim of  
tangible effects, it seems unreasonable to read too much significance  
into a decision on pleadings.  If later in the litigation EEOC rejects  
the tangible effects claim for lack of proof but sustains the hostile  
environment claim, there will be an interesting first amendment  
question; until then, I think we're in the domain of pro se  
administrative charge sufficiency, with one allegation clearly  
sufficient to state a claim for administrative relief.

Mike

Michael R. Masinter                      3305 College Avenue
Professor of Law                         Fort Lauderdale, FL 33314
Nova Southeastern University             954.262.6151 (voice)
masinter at nova.edu                        954.262.3835 (fax)


Quoting "Volokh, Eugene" <VOLOKH at law.ucla.edu>:

>                If the case were just a case of retaliatory   
> reassignment, and the T-shirts were just seen as evidence of the   
> supervisor's motive, then I'd have no problem here.  It would be the  
>  same as if, for instance, someone was harshly criticizing a   
> government official, and the statements were then introduced as   
> evidence in a rock-throwing incident at the official's home, to help  
>  show that the defendant was indeed the culprit (by showing the   
> defendant's motive).
>
>
>
>                But it's not clear to me why that's the likeliest   
> reading of the EEOC decision.  The EEOC was speaking of hostile   
> environment harassment broadly, and concluded that a combination of   
> the alleged retaliation and the "statements made and shirts worn"   
> sufficed to show that the alleged harassment was severe or pervasive:
>
>
>
> In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the   
> Supreme Court reaffirmed the holding of Meritor Savings Bank v.   
> Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it   
> is sufficiently severe or pervasive to alter the conditions of the   
> complainant's employment. The Court explained that an "objectively   
> hostile or abusive work environment [is created when] a reasonable   
> person would find [it] hostile or abusive:" and the complainant   
> subjectively perceives it as such. Harris, supra at 21-22. Thus, not  
>  all claims of harassment are actionable. Where a complaint does not  
>  challenge an agency action or inaction regarding a specific term,   
> condition or privilege of employment, a claim of harassment is   
> actionable only if, allegedly, the harassment to which the   
> complainant has been subjected was sufficiently severe or pervasive   
> to alter the conditions of the complainant's employment.
>
>
>
> Upon review of the record, we find that complainant has alleged   
> sufficient facts to state a claim of harassment. In addition to the   
> statements made and shirts worn by CW1 and CW2, complainant also   
> alleged that she was taken off of light duty work. Accordingly, we   
> find that complainant alleged that the harassment altered the   
> conditions of her employment. Accordingly, we find that   
> complainant's claim of harassment is actionable.
>
>
>
> And of course the wearing of the T-shirts by coworkers isn't much by  
>  way of evidence of what the supervisor thought.  So it sounds like   
> the EEOC is saying that the allegations related to T-shirts, the   
> statements, and the reassignment put together are enough incidents   
> to clear the severe-or-pervasive bar.  Or am I missing something?
>
>
>
>                Eugene
>
>
>
>
>
>
>
> From: Kermit Roosevelt [mailto:krooseve at law.upenn.edu]
>
> Sent: Monday, October 26, 2009 6:06 PM
>
> To: Volokh, Eugene
>
> Cc: Conlawprof at lists.ucla.edu
>
> Subject: Re: Interesting harassment / speech case?
>
>
>
> What if someone wears a t-shirt saying "yes, it's retaliation"?   
> Excluded from the complaint?
>
>
>
>> -----Original Message-----
>
>> From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-
>
>> bounces at lists.ucla.edu] On Behalf Of Michael R. Masinter
>
>> Sent: Monday, October 26, 2009 5:54 PM
>
>> To: conlawprof at lists.ucla.edu
>
>> Subject: RE: Interesting harassment / speech case?
>
>>
>
>> The EEOC order reversing the administrative equivalent to the grant of
>
>> a 12(b)(6) motion is not a model of clarity, but perhaps the key to
>
>> making sense of it lies in its statement that the complainant was
>
>> taken off light duty work.  If that is true, then her claim is a
>
>> tangible effects harassment / discrimination claim based on the
>
>> conduct of her supervisor rather than a no tangible effects hostile
>
>> environment claim based on the T-shirts and statements of her
>
>> coworkers.  Like a demotion or a discharge, a racially motivated
>
>> reassignment to less desirable work can be an actionable
>
>> discriminatory act under Title VII.  If she can show the supervisor
>
>> reassigned her because of her race, she wins without regard to whether
>
>> the work environment was charged with severe or pervasive harassment,
>
>> and without regard to whether the employer had in place a policy
>
>> prohibiting harassment and an available grievance procedure.  Because
>
>> the supervisor who transferred her to less desirable work exercised
>
>> the supervisory authority, albeit for an unlawful racial reason,
>
>> imputed employer  liability follows as a matter of course without
>
>> regard to the existence of a hostile environment.
>
>>
>
>> If that is what EEOC intended in applying notice pleading standards to
>
>> the complaint, then the allegations regarding the T-shirts may be
>
>> thought to show the state of mind of the supervisor who reassigned
>
>> her, not to show the existence of a hostile work environment.  By
>
>> showing the supervisor was aware of them and tolerated them at the
>
>> same time the supervisor reassigned her away from light duty work, she
>
>> seeks to infer discriminatory intent in the reassignment; if the
>
>> supervisor transferred her to less desirable work because of her race,
>
>> the employer loses.
>
>>
>
>> To be sure I may be misreading the EEOC order, but it is obviously
>
>> true that when a supervisor makes or endorses otherwise protected
>
>> statements while making a tangible change in an employee's job, those
>
>> statements are admissible to prove discriminatory intent.  I may have
>
>> a first amendment right to say that I hate white people, but if I say
>
>> that while firing, demoting, or reassigning a white employee to less
>
>> desirable work, my employer will certainly lose a Title VII claim.
>
>>
>
>> On that reading of the complaint, there is no first amendment issue
>
>> posed by using speech to prove the supervisor's state of mind.
>
>> Whether the evidence is sufficient for that purpose would seem to
>
>> present a question properly decided later in the administrative
>
>> process, perhaps on an equivalent to a motion for summary judgment or
>
>> at an evidentiary hearing, not on the equivalent to a motion to
>
>> dismiss for failure to state a claim for relief.
>
>>
>
>> Mike
>
>>
>
>> Michael R. Masinter                      3305 College Avenue
>
>> Professor of Law                         Fort Lauderdale, FL 33314
>
>> Nova Southeastern University             954.262.6151 (voice)
>
>> masinter at nova.edu                        954.262.3835 (fax)
>
> ...
>
>> > Volokh, Eugene wrote:
>
>> > Any thoughts on this?  Note that the EEOC isn't just saying that
>
>> > it's permissible for the government acting as employer to restrict
>
>> > such T-shirts and comments by its employees.  Rather, the EEOC's
>
>> > assertion is that these incidents - including the wearing of the
>
>> > T-shirts, and not just the alleged retaliation, nonspeech conduct,
>
>> > and individually targeted statements - could be actionable
>
>> > harassment, and thus subject to legal liability even if they took
>
>> > place in the private workplace (where such liability would stem from
>
>> >  the government's role as sovereign, and not just as employer).
>
>> >
>
>> > Eugene
>
>> >
>
>> > Deiters v. Potter, 2009 WL 334700 (EEOC Sept. 29):
>
>> >
>
>> > In her complaint, complainant alleged that she was subjected to
>
>> > discriminatory harassment from August 2008 through February 2009, on
>
>> >  the bases of race (white) and reprisal for prior protected EEO
>
>> > activity under Title VII. In support of her claim of harassment,
>
>> > complainant alleged the following events occurred:
>
>> > 1. On August 12, 2008, a co-worker (CW1) publicly threatened to file
>
>> >  a harassment against anyone that said anything about her shirts.
>
>> > 2. On August 18, 2008, CW1 wore a black on white shirt that read
>
>> > "You See Me - Hi Hater" and on the reverse read "Bye Hater." She
>
>> > verbally made sure that complainant could read the shirt and
>
>> > proceeded to say "Hi Hater; Bye Hater" in a nasty tone.
>
>> > 3. On January 12, 2009, CW1 made a racial slur when she stated that
>
>> > all white women are liars.
>
>> > 4. On January 21, 2009, CW1 wore a racial/political shirt and
>
>> > attempted to hit complainant and others with a tug.
>
>> > 5. On January 25, 2009, CW1 wore a new shirt, which read "American
>
>> > by Abduction," and stated that she wore the shirt due to racists in
>
>> > the building.
>
>> > 6. On January 27, 2009, CW1 loudly exclaimed the need for a "Code
>
>> > Black" day at the Post Office and purposely put empty ergos into
>
>> > complainant's MMP staging area.
>
>> > 7. On February 2, 2009, CWl wore a racist "Do Not Bleach" shirt. In
>
>> > addition, complainant was removed from the light-duty belt duty.
>
>> > 8. On February 7, 2009, another co-worker (CW2) called complainant a
>
>> >  "fucking baby." ...
>
>> >
>
>> > Upon review of the record, we find that complainant has alleged
>
>> > sufficient facts to state a claim of harassment. In addition to the
>
>> > statements made and shirts worn by CW1 and CW2, complainant also
>
>> > alleged that she was taken off of light duty work. Accordingly, we
>
>> > find that complainant alleged that the harassment altered the
>
>> > conditions of her employment. Accordingly, we find that
>
>> > complainant's claim of harassment is actionable....
>
>> >
>
>> >
>
>> >
>
>> >
>
>> >
>
>> >
>
>> >
>
>> > ________________________________
>
>> >
>
>> >
>
>> >
>
>> >
>
>> >
>
>> >
>
>> > _______________________________________________
>
>> >
>
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>
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>
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