Category Archives: Hostile Work Environment

Extreme Sexual Harassment of Philadelphia Police Detective Proceeds to Trial

Sexual harassment at the workplace in Pennsylvania takes many forms and in some circumstances the conduct at issue can be shocking. When an employee reports sexual harassment, the employer fails to take conduct a proper investigation and fails to take remedial action to stop egregious sexual harassment, employees may be able to recover substantial damages for emotional distress. In Vandergrift v. City of Philadelphia E. D. Pa. no. 16-cv-2999 (January 11, 2017), the employee, a female Philadelphia police detective, filed a lawsuit for gender discrimination, a sexually hostile work environment, and retaliation under Pennsylvania, federal and Philadelphia law.

To establish a sexually hostile work environment in Pennsylvania an employee must show: (1) she suffered intentional discrimination because of her sex; (2) the employee suffered severe or pervasive discrimination; (3) the discrimination detrimentally affected her; (4) the discrimination would detrimentally affect a reasonable employee in similar circumstances; and (5) the existence of respondent superior liability (employer liability). To determine whether an environment is severe or pervasive, courts consider the totality of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.  Pervasive use of derogatory and insulting terms relating to women serve as evidence of a hostile environment. If supervisors create the hostile environment, an employer is strictly liable unless there is no tangible employment action taken against the employee and the employer exercised reasonable care to prevent and correct any sexually harassing behavior and the employee unreasonably failed to take advantage of any preventive or corrective opportunities.

In Vandergrift, the court’s opinion outlines graphic sexual misconduct and harassment at the workplace. The employee, a career Philadelphia police officer, became a detective after 7 years of service. She worked in an environment allegedly riddled with sexual harassment that included not only sex-based comments but also alleged sexual assault by a Chief Inspector. After complaining about the harassment, she was transferred to another squad and thereafter she was charged with misconduct.

The female detective testified that in 2007, the Chief Inspector called her on the phone on at least three occasions and made sexual comments including he would love to bend her over and his most favorite part of a woman’s body and the part of the body which turned him on most was the part between her hips to her thighs. There was evidence of egregious physical misconduct as the Chief Inspector called the detective into his office and said, he wanted to know how wet she was, unzipped her pants, stuck his hand down her pants and underwear, and inserted his finger into her and then engaged in other remarks. Other evidence included the employee’s testimony that not a week went by without demeaning, inappropriate, barbaric sex-based comments and gawking stares on a constant basis. When the employee complained about how the stares made her uncomfortable, she was advised she should take the stares as a compliment. Rumors were also spread around the workplace that she engaged in sexual relationships with coworkers; she was subject to constant comments about how good she looked, and she was exposed to numerous comments about officers’ penises.  In addition, a second female officer alleged that in one incident the same Chief Inspector started kissing her hard, touched her breasts, and put his hands on the outside of her pants toward her genitals and digitally penetrated her. An internal complaint was filed about that incident, the City impounded the Chief Inspector’s city-issued vehicle, conducted a forensic examination, and found seminal stains but the investigation resulted in a finding of “not sustained” and the Chief Inspector never received any discipline. After making a formal complaint the Plaintiff employee was charged with misconduct for sending a Facebook message to four male colleagues in her squad which included a picture of a baby whose facial expression reminded her of another Detective and included quotes with inappropriate language.

The Plaintiff offered expert testimony that the City’s sexual harassment complaint procedures and investigative practices failed to satisfy a number of workplace investigation standards by improperly applying a criminal law standard to some of the complaints; failing to investigate all the allegations and numerous other deficiencies.

In Vandergrift, the court addressed an issue that frequently arises in sexual harassment cases, the admissibility of incidents that go far back in time, given the time filing restrictions under applicable law (Pennsylvania law: employee must file a discrimination complaint within 180 days of the alleged act of discrimination; federal law: 300 days (EEOC Charge), two years (§1983 claim). In seeking to dismiss the employee’s claims, the City of Philadelphia argued that many of the facts forming the basis of the sexually hostile work environment claims occurred years prior to the charge and should be excluded because they were isolated or sporadic and not sufficiently linked to constitute one unlawful employment practice.

The continuing violations doctrine is an exception that extends the admissible incidents beyond the time filing requirements and provides that a sexually hostile work environment claim may be composed of a series of separate acts that collectively constitute one unlawful employment practice so long as (1) all acts which constitute the claim are part of the same unlawful employment practice; and (2) at least one act falls within the applicable limitations period. In Vandergrift, the Court concluded that the employee would be able to admit evidence that went back many years as there was sufficient evidence of a persistent, ongoing pattern of harassment which included the 2007 sexual assault and evidence that not a week went by without demeaning, inappropriate, barbaric sex-based comments, and gawking stares on a constant basis. The court also found a genuine dispute of material fact as to whether the City properly responded to the harassment allegations and whether it exercised reasonable care to correct the alleged harassment.

Retaliation claims concern conduct to which an employee is subjected after reporting sexual harassment. To state a prima facie case of retaliation an employee must establish: (1) she engaged in protected activity; (2) the employer engaged in conduct constituting an adverse action either contemporaneous with or after the protected activity; and (3) a causal connection between the protected activity and the adverse action. Then the burden of production of evidence shifts to the employer to present a legitimate, non-retaliatory reason for having taken the adverse action. Thereafter, the employee must prove that the employer’s proffered explanation was false, and that retaliation was the real reason for the adverse employment action.

In Vandergrift, the employee referenced four possible materially adverse actions: 1) supervisors labeled her as untrustworthy by telling her coworkers she filed an EEO complaint; 2) male colleagues spread rumors about her having a sexual relationship with a lieutenant; 3) the City reassigned her to another division where work is extremely hectic and busy; and 4) the City charged her with misconduct following the investigation. The court found that each of these could be adverse actions.

A third cause of action at issue in Vandergrift was a §1983 claim. A municipality is liable under §1983 when an alleged constitutional transgression implements or executes a policy, regulation, or decision officially adopted by the governing body or informally adopted by custom. The court found that the evidence established that there was sufficient evidence that the City of Philadelphia had a well-settled custom of sexual harassment within the Philadelphia Police Department as the employee’s coworkers and supervisors directed sex-based conduct toward her and other female employees throughout her employment and sexual allegations against high level managers were “swept under the rug” which equated to an unconstitutional custom of treating female employees in the Police Department less favorably than male employees. Thus, the court denied the Motion for Summary Judgment permitting all of the employee’s claims to proceed to a jury trial.

Andrew Abramson is an experienced Pennsylvania employment law attorney who represents employees who are the victims of sexual harassment and sexually hostile work environments in Philadelphia and all its surrounding suburbs. For more information on sexual harassment see http://www.job-discrimination.com/sexual-harassment

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Husband Proceeds with Sex Based Hostile Work Environment Claim Against Employer Based on Wife’s Actions

Many employers have policies that restrict two members of the same family, such as a husband and wife, from working together in order to avoid nepotism, a conflict of interest and other issues that could allow a family related dispute to cause an issue at the workplace. Other employers permit two family members to work at the employer if they are in a different department, or they do not supervise each other. A recent Pennsylvania federal court decision in Reiser v. Concordia Lutheran Health, W. D. Pa. no. 16-959 (December 8, 2016, Bissoon, J.) demonstrates that employers who do not have these types of workplace restrictions may be exposed to liability under laws which protect retaliatory action against employees, such as sexual harassment.

In Reiser, the husband was an employee who worked as a Corporate Director of Rehabilitation at a senior and healthcare services provider with several locations. The employee’s wife, the daughter of the Chief Executive Officer, was employed by the same employer as a manager. When the marital relationship ended, bad feelings erupted, causing substantial problems at the workplace.

The wife confronted her husband in his office and asked him to renew their relationship before their divorce was final; when he refused, the wife stated that she would make his life “a living hell.” The wife then engaged in a series of harassing actions at work, including sending text messages using vulgar terms; telling other employees that the husband was an inadequate lover and a poor father; requiring the husband to use a computer program at work to track his whereabouts and the time that he spent using his mobile phone, while no other salaried, management level employee was required to do the same; falsely alleging that the husband was repeatedly staring at her and not working; using the performance evaluation process to accuse the husband of poor work performance, even though the work performance allegations conflicted with the performance data provided by the other facility managers; and reporting the husband to the police for a violating a protection from abuse order and not advising the police that the husband was an employee required to work at the designated location that day, with the intent of causing difficulty at the workplace as it would be nearly impossible for him to perform his duties and comply with the restrictions. The husband complained to human resources about the wife’s conduct but the employer took no action to address the situation and have the wife cease her actions.

In Reiser, the husband filed litigation against the employer claiming that the employer subjected him to a hostile work environment because of his sex. The employer filed a Motion to Dismiss, arguing that the employee’s hostile work environment claim fails because the actions at issue were not motivated by sex, but rather were the result of a family law dispute.

In order to establish a prima facie of a sexually hostile work environment based on gender, an employee must show that the employee (1) suffered intentional discrimination because of sex; (2) the discrimination was severe or pervasive; (3) the discrimination detrimentally affected the employee; and (iv) the discrimination would negatively affect a reasonable person in the employer’s position. For the harassment to be actionable, the workplace must be permeated with discriminatory intimidation, ridicule, and insult that was sufficiently severe or pervasive to alter the conditions of the employee’s employment and create an abusive working environment.

In Reiser, the court denied the Motion to Dismiss and found that the husband alleged sufficient facts to support a sexually hostile work environment claim against the employer by showing that the wife’s actions were sufficiently severe and pervasive to have altered the terms and conditions of his employment, as the wife used her position as a management level employee and daughter of the employer’s Chief Executive Officer to harass the husband because of his refusal to renew their intimate relationship. As such, the court found that the husband sufficiently alleged that he was negatively impacted by the alleged harassment in the form of anxiety and depression and that the actions taken against him would negatively affect a reasonable person in the employee’s position.

Andrew Abramson is an experienced Pennsylvania employment law attorney who represents employees who have been subjected to sexual harassment and hostile work environments. Abramson Employment Law represents clients in Philadelphia, Montgomery County and surrounding areas. For more information on sexual harassment and retaliation see http://www.job-discrimination.com/sexual-harassment.html.

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Employer May be Liable for Sexual Harassment by Coworkers Who are not Supervisors

While an employer is not automatically liable for sexual harassment at the workplace when a coworker engages in sexual harassment, where the employer has notice of the sexual harassment and fails to take action to stop the harassment, the employer can be found liable. Employers are also liable for retaliation when they take action against employees for reporting sexual harassment.

In Rosh v. The Gold Standard Café at Penn, Inc., E. D. Pa no. 16-1676 (December 19, 2016, Surrick, J.), the employee, a restaurant prep cook alleged that she was sexually assaulted on multiple occasions. A co-worker grabbed her in the crotch area, made attempts to touch the employee’s breasts, consistently stared at her breasts, and intentionally touched the employee; and another co-worker attempted to touch employee and also made multiple sexually inappropriate comments.The employee told the coworkers to stop however, the conduct continued. The employee reported the sexual harassment to the two co-owner/managers who advised they would speak to the coworkers but the sexual harassment continued. Thereafter, the employee sent an email to the managers detailing the sexual harassment and also followed up with a letter. Thereafter, an owner/manager stopped speaking to the employee, reduced her work hours and told the employee to try to stop the harassment on her own. Shortly thereafter, the employee resigned because the employer refused to address her reports of sexual harassment and instead retaliated against her. The employee filed causes of action for a sexually hostile work environment, constructive discharge of employment and retaliation for reporting the harassment and the employer filed a Motion to Dismiss the Complaint.

In order for an employee to establish a sexually hostile work environment claim, an employee must prove that: (1) she suffered intentional discrimination because of her sex; (2) the discrimination was severe or pervasive; (3) the discrimination detrimentally affected her; (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position; and (5) the employer is subject to liability under the theory of respondeat superior. In considering whether the work environment was hostile, courts must consider the totality of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.

When the harasser and victim are of the opposite sex, there is a reasonable inference that the harasser is acting because of the victim’s sex. With regard to meeting the severe or pervasive standard, simple teasing, offhand comments and isolated incidents (unless extremely serious) will not typically amount to discriminatory changes in the terms and conditions of employment. If management-level employees have actual or constructive knowledge about the existence of a sexually hostile environment and fail to take prompt and adequate remedial action, then an employer will be held directly liable for an employee’s sexual harassment. Once an employer has knowledge of the sexual harassment, it must take prompt and adequate actions reasonably calculated to prevent further harassment.

In Rosh, the court found that the employee had sufficiently plead sexual harassment as the grabbing of a female body parts and sexually inappropriate comments demonstrate that the harassment was because she was female; and the conduct was severe, and does not constitute simple teasing, as any reasonable person would find the actions hostile and abusive. Further, the respondeat superior (employer liability) standard was met because the employee informed the co-owners of the ongoing sexual harassment on at least four separate occasions and other there than speaking with the coworkers, the employer did not take any additional steps to remedy the situation; and instead stopped speaking to the employee and told her to fix the situation on her own.

A constructive discharge occurs when an employee resigns because of unendurable working conditions. An employee must show that the employer’s actions were serious enough to change the employee’s compensation, terms, conditions or privileges of employment and make continuing employment with the employer so unpleasant or intolerable that a reasonable person would resign. An employee does not have to show that the employer specifically intended to force the employee to quit, only that the employer knowingly permitted the unpleasant or intolerable discrimination. In Rosh, the court found that the employee demonstrated that her work environment was sufficiently unpleasant and intolerable so that a reasonable person would resign as she was repeatedly harassed and grabbed, and that she was afraid while at work; and the employer did nothing to solve the problem.

Both Title VII (the federal law) and the Pennsylvania Human Relations Act (PHRA) prevent employers from retaliating against employees for reporting instances of sexual harassment. To state a retaliation claim, an employee must establish that: (1) the employee engaged in protected activity; (2) the employer took an adverse employment action against the employee; and (3) there was a causal connection between the employee’s participation in the protected activity and the adverse employment action. An employee must prove causation either through (1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link. Temporal proximity exists if an employee alleges a retaliatory action that occurred within a short time after the employee’s last protected activity.

In Rosh, the court found that the employee reasonably believed that her employer was required to take steps to prevent the sexual harassment and the hostile work environment, the employee reported the conduct at issue and she also stated that she would report the sexual harassment to the Pennsylvania Human Relations Commission (PHRC) if the sexual harassment did not stop. The court held that the employee had a reasonable basis to believe that the employer was violating its duties under the law. Further, the court found that after reporting the ongoing sexual harassment, management stopped speaking to the employee and reduced the employee’s scheduled work hours; actions that would dissuade any reasonable worker from reporting a charge of sexual harassment. As the retaliatory events occurred within five weeks from the time that the employee wrote a letter to management stating that if the employer did not take action in response to the sexual harassment the employee would report the employer to the PHRC; and after she complained again about the ongoing sexual harassment, the court found the temporal proximity requirement was satisfied.

Abramson of Employment Law represents Pennsylvania employees subjected to sexual harassment and retaliation by their employers. For more information on sexual harassment and retaliation see http://www.job-discrimination.com/sexual-harassment.html.

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$2.5 Million Employment Discrimination- Race and Retaliation Verdict Affirmed

In most employment discrimination cases there are two common measures of damages sustained by an employee, economic damages, such as lost salary, wages, bonuses and benefits following the termination of employment, and compensatory damages, which compensate an employee for emotional distress damages. Economic damages are far easier to quantify. As a recent New Jersey Supreme Court case illustrates, when there are facts which support employees suffering substantial emotional distress in an employment discrimination case, courts will permit a jury to award significant emotional distress damages.

In Cuevas v. Wentworth Group, (no.-30-14, 075077) (N. J. Super A. D. September 19, 2016), in a race discrimination and retaliation case, a unanimous Supreme Court of New Jersey affirmed a jury award of $2.5 million to two Hispanics brothers, including $800,000 in emotional distress damages to one employee and $600,000 to the other employee. The employees were employed as a regional vice president and portfolio manager at a property management company. The employees presented evidence that they were routinely subject to racially disparaging and humiliating remarks by the employer’s executives, including the executive vice president of operations. The employees alleged that, they routinely faced biting remarks that invoked racially demeaning stereotypes. Many of the degrading remarks occurred at senior executive meetings attended by an in-house lawyer, other executives, and regional vice presidents. The employees filed a lawsuit under the New Jersey Law Against Discrimination (LAD) alleging race discrimination, retaliation and a racially hostile work environment.

The evidence at the trial included the employees being referred to as Chihuahuas, Latin lovers, and the “Rico Suave brothers.” At a meeting when music was played, an employee interjected, “Do you think we could get a little Mariachi or salsa music in the background”- “something a little more to Ramon’s (one of the brothers) taste?” At a conference to discuss entertainment, an employee said that Ramon should look through his Rolodex because he might know “a salsa band, a Mariachi band that can perform.” Although Ramon attempted to deflect the hurtful comments, he was embarrassed, particularly when they were made in the presence of employees that he supervised. On one occasion, an executive stated that if he did not pick up the check, “Ramon can join his father [in the back] and you guys can wash dishes.” On another occasion when one of the employees came to the office explaining that he had to fix a flat tire, an employee suggested that if a “Puerto Rican” were observed with a crowbar kneeling by a car, he might be mistaken as “trying to steal the car or the hubcaps.” Two former property managers for the employer also testified that n executive made comments that they would be safe in bad neighborhoods when accompanied by Ramon because “he’s one of them” and because he was “Spanish.” The employer’s director of human resources also referred to the brothers as “Latin lovers.”

Just prior to being terminated one of the brothers told the employer’s in-house lawyer, “I really would like it if those comments at these executive meetings could stop” and he described the repetitive offensive remarks as “silly,” “childish,” and “degrading.” The lawyer replied that he should “calm down” and that the remarks were “good natured ribbing,” not “that big a deal,” and should not be taken “so seriously.” Four days later, one of the brothers was fired after he had just been given a performance-based raise of $10,000 four weeks earlier and shortly thereafter, the other brother was terminated. While the employer contended that employees were terminated for poor work performance, the employer could not produce any documents to substantiate a claim that the employer had received client complaints

In Cuevas, the New Jersey Supreme Court rejected the employer’s argument that in an employment discrimination case, only nominal damages may be awarded to compensate an employee for emotional distress when there is no independent corroborative proof or a showing of resulting physical or psychological symptoms. Instead, the Court held that a plaintiff employee may recover damages for emotional distress and mental anguish arising out of embarrassment, humiliation, and other intangible injuries without medical proof, as courts must give due regard to the opportunity of the jury to pass upon the credibility of the witnesses. Thus, the New Jersey Supreme Court found that due to the special harm that can be caused by willful discrimination in the workplace, compensatory damages for emotional distress, including humiliation and indignity, are remedies that require a far less stringent standard of proof than that required for a tort-based emotional distress cause of action.

The Court noted that the employees were entitled to recover all natural consequences of the employer’s wrongful conduct, including emotional distress and mental anguish damages arising out of embarrassment, humiliation, and other intangible injuries as the mental anguish and humiliation were sustained over a long period, and was not fleeting or insubstantial. While the Court noted that the jury awards for emotional distress damages of $800,000 and $600,000 to the employees “are probably on the high end, they were not so wide of the mark that they shock the judicial conscience.”

For more information about race discrimination and retaliation see, http://www.job-discrimination.com/race-discrimination.html, http://www.job-discrimination.com/retaliation.html

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Employee Terminated After Requesting Extended Leave Has Retaliation, Pregnancy, Sex & Disability Discrimination Claims

Employees who experience complications during pregnancy that require leave from work prior to the birth of a child may confront a situation where the employee has exhausted her right to Family and Medical Leave (FMLA), which is limited to 12 weeks furring any rolling 52-week period before the employee is medically cleared to return to work following the birth of a child. Depending on the facts, there may still be protection for employees who are terminated prior to their return to work under the Pregnancy Discrimination Act which is part of Title VII and the Pennsylvania Human Relations Act which forbid sex discrimination, and the Americans with Disabilities Act (ADA), as these laws may protect an employee’s right to be granted extended leave from work.

In Oliver v. Scranton Materials, Inc., M. D. Pa. no. 14-cv-00549 (June 14, 2016. Mariani, J.), the Court denied the employer’s motion for summary judgment and allowed the case to proceed to trial in a situation where the employee was notified following a period of maternity/disability leave that she would be permanently laid off. The employee alleged that she was discriminated on the basis of gender, pregnancy, and disability and that she suffered retaliation at the workplace. In Oliver, the employee claimed that she was subjected to a hostile and discriminatory work environment on the basis of sex and pregnancy, the employer retaliated against her by cutting her out of meetings, complaining of her need for pregnancy related leave, and asking her to accept a salary reduction due to her pregnancy and need for leave; retaliated against her based on her disability (complications with her pregnancy); and failed to accommodate her need for disability leave arising from the complications of pregnancy; and refused to allow her to return to work.

In Oliver, the employee worked in a sales capacity for the employer, a company that produced and sold decorative landscape stone and building stone for wholesale delivery. The employee became pregnant with triplets and experienced complications that required her to begin working half-days. Shortly thereafter, the employee began having problems with a part owner of the company who was her supervisor, who at one point said, “you’re not going to be able to work with those three f-ing babies at home.” The employee continued to receive her full salary for working half days until she went out on maternity disability leave. Six days after the employee had the triplets, her FMLA expired as she had used FMLA leave prior to the birth of her children as a consequence of her ability to work only half-days. The employee intended to return to work 8 weeks after the birth of her children but then requested an additional four weeks leave due to complications related to her pregnancy and associated surgery. Two days after her request, the employee was advised that her employment would be terminated. According to the employer, the employee was terminated in anticipation of the finalization of the sale of its business as well as the overall lack of business during the winter months, however, the employee disputed that there was a sale of the business and claimed the evidence showed that the business continued and did not cease operations.

Title VII provides that it shall be an unlawful employment practice for an employer… to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s… sex which includes discrimination on the basis of pregnancy, childbirth, or related medical conditions. To establish a prima facie case of pregnancy discrimination, an employee must establish that: (1) the employer knew of her pregnancy; (2) she was qualified for the position; (3) she suffered an adverse employment action; and (4) there is a causal nexus between her pregnancy and the adverse employment action. Once the employee presents sufficient evidence to establish a prima facie case, the burden shifts to the employer to articulate some “legitimate, nondiscriminatory reason” for the adverse employment action. Then the burden shifts back to the employee to set forth facts tending to show that the employers proffered legitimate non-discriminatory reason was merely a pretext for discrimination by pointing to some evidence from which a fact-finder could reasonably (1) disbelieve the employer’s articulated reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.

In Oliver, the court found that the employee established a prima facie case because the supervisor made repeated comments to her concerning her pregnancy, prior to her pregnancy after the need to reduce her workload to half days and that the employer’s negative statements constitute sufficient evidence of discriminatory animus sufficient to established prima facie case of pregnancy discrimination. The court also found that the employer offered a legitimate nondiscriminatory reason, the sale of the business, however, the Court found that there was sufficient evidence of pretext by showing that according to the Pennsylvania Secretary of State’s Website, the employer did not in fact cease operations through a sale of the company’s business, rather, the employer merely changed its name and it continued to operate at the same location with the same telephone and fax numbers and website; and that there were jobs that the employee could have performed. The court also held that the conduct at issue could be found to be sufficiently severe and pervasive to constitute a hostile work environment relying on statements regarding the employee’s inability to work with three small babies at home and by looking at the totality of the circumstances.

Under the ADA, an employer may not discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. To state a prima facie claim of disability discrimination under the ADA, a plaintiff must establish that she: (1) has a disability, (2) is a qualified individual, and (3) has suffered an adverse employment action because of that disability. The ADA also provides for a retaliation action as an employer cannot discriminate against any individual because such individual has opposed any act or practice made unlawful by the ADA and it shall be unlawful to coerce, intimidate, threaten, or interfere with an individual in the exercise or enjoyment… of any right granted or protected” by the ADA. To establish a prima facie case of ADA retaliation… a plaintiff must show that: (1) she undertook some protected activity, (2) that she suffered an adverse employment action, and (3) that there exists a causal connection between the two.

In Oliver, the Court found that, drawing all reasonable inferences in the light most favorable to the employee, a jury could conclude that the employee was disabled within the meaning of the ADA due to complications related to her pregnancy and that there was sufficient evidence from which a rationale factfinder could conclude that there was a causal connection between Plaintiff’s disability and her termination.

For more information on pregnancy discrimination, the Americans with Disabilities Act, the Pennsylvania Human Relations Act, Disability Discrimination, and Abramson Employment Law, see http://www.job-discrimination.com/lawyer-attorney-1126517.html, http://www.job-discrimination.com/lawyer-attorney-1126511.htm.

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Retaliation: Employee Who Complains About Race Discrimination and is Terminated Has Retaliation Claim

Employment laws protect employees from retaliation when an employee complains that he is being discriminated against at the workplace. In Braddock v SEPTA (E. D. Pa. April 21, 2015 (O’Neill, J.), the employee worked as the only black male Yard Master for SEPTA for over three decades. The employee concluded that he was experiencing what he perceived to be racial discrimination at his workplace, because he was being “treated differently than Caucasian Yard Masters” by his supervisor, and other employees. The employee complained to the appropriate individuals, and eventually was fired. The employee filed a retaliation claim against his employer alleging that his termination was directly correlated to the race discrimination complaints that he made.

After proceeding though discovery, the employer filed a motion for a summary judgment, claiming that the employee failed to make a showing sufficient to establish the existence of an element essential to a retaliation claim. In order to establish a case of retaliation, an employee is required to show 1) that the employee engaged in protected employee activity; 2) an adverse action by the employer, either after or contemporaneous with the employee’s protected activity; and 3) a casual connection between the employee’s protected activity and the employer’s adverse action. Protected activity, under Title VII includes, “opposition to unlawful discrimination and protects an employee who complains about employer conduct he or she reasonably believes to be an unlawful employment practice, whether or not the conduct is actually protected discrimination under the law.

In Braddock, “prior to his termination, during a telephone call with his supervisor the employee testified that he attempted to complain over the phone to his supervisor that he was…being racially discriminated against…and that he was being treated differently than other Yard Masters.” The employee testified that his supervisor cut him off and accused him of calling the supervisor a racist; the employee then denied calling the supervisor a racist. The supervisor did not deny the existence of the phone call, and testified that the employee called him a racist and the supervisor stated that the employee said that the supervisor was out to get him. The court found that there was undisputed testimony that establishes the only reason for the call was to inform the supervisor and other union officials of the conduct at issue.

The employee file a motion for summary judgment arguing that, there is no issue of material fact regarding whether Braddock engaged in protected conduct and that therefore Braddock cannot sustain a claim of retaliation. The employer argued that the employee’s allegations were vague and self-serving, and not “objectively reasonable to constitute protected activity.” However, the court found that evidence suggests that Braddock did not simply report these issues of racism objectively, but with opposition to it, which constitutes protected activity under Title VII.

In Braddock, the court found that there are no undisputed issues of material fact regarding the complaint of racial discrimination to the employer’s EEOC office prior to the employees termination and there was evidence of a discussion of the employees complaints of racial discrimination prior to Braddock’s termination and the supervisor conceded that the fact that the employee called him a racist was at least one reason for the employers decision to terminate the employee. The Court held that even if a written complaint had not been filed, the other complaints may be sufficient to establish a retaliation claim since Title VII claims can involve formal charges of discrimination as well as informal protests of discriminatory employment practices, including making complaints to management. As a consequence, the court found that the employee established protected action, and the employee could proceed to trial with his retaliation claim.

For more information on retaliation and Abramson Employment Law, see http://www.job-discrimination.com/lawyer-attorney-1126498.html. You can

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Race, National Origin Discrimination & Retaliation: Employee Subjected to Discrimination & Retaliation for Complaining about Discriminatory Conduct Can Proceed to Trial

In employment discrimination cases there are often factual disputes which arise concerning key elements of employment discrimination. As demonstrated by Codada, v. Grace Adult Day Health Care Inc., 2014 U.S. Dist. LEXIS 33257(E. D. Pa. March 14, 2014)(Shapiro, J.), where there are factual disputes regarding key elements of a discrimination or retaliation case, an employee is not entitled to summary judgment and the factual disputes need to be resolved at trial by a jury.

In Codada, the plaintiff employee was a black male of Haitian descent employed by a provider of day services to the elderly for five years until his employment was terminated. After a change in supervisor, the employee began to receive less and less overtime and felt these changes were unfair and he was being discriminated against because of his race and ethnicity. At a meeting where he was given a written warning purportedly disciplining him for tardiness which he disputed, the employee stated that he felt that he was being unfairly discriminated against because of his race. Thereafter, the employee’s work hours were reduced, he completed an EEOC intake form alleging race and national origin discrimination and retaliation and the EEOC sent the employer a notice informing it the employee had initiated a complaint; thereafter, the employee filed a formal EEOC Charge. The employee also alleged that he was subjected to an increasingly hostile environment where co-workers openly made discriminatory comments about his race and ethnicity, including referring to him as a “monkey” in front of clients and co-workers, calling Haitians “dirty” and “poor,” and saying to him God painted him and “forgot to remove the paint.” The employee was also requested to produce a gas receipt and undergo a mid- employment federal criminal background check while other employees were not.

After the EEOC Charge was filed the employee believed his supervisor’s behavior toward him was demeaning and disrespectful and when he attempted to complain about his treatment or his working conditions, he was told to leave the supervisor’s office, and on one occasion, the supervisor asked the employee why he still worked at the employer and encouraged him to find another job. Ultimately, the employee was issued a written warning for clocking in before his scheduled start time even though the employee insisted his transportation manager had given him permission to start and end his shift approximately a half hour earlier to accommodate family responsibilities. Shortly thereafter, the employee’s employment was terminated. The employee filed claims of race and national origin discrimination and retaliation.

An employee must establish five elements under the totality of the circumstances to prove a hostile work environment claim: (1) the employee suffered intentional discrimination on account of membership in a protected class; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the employee; (4) the discrimination would have detrimentally affected a reasonable person in the employee ‘s position; and (5) the existence of respondeat superior (employer liability for the actions of employees).

As to the race and national origin discrimination claims employment discrimination actions are subject to a burden-shifting test. First, the plaintiff must establish a prima facie case of discrimination. The burden then shifts to the defendant to articulate some legitimate, non-discriminatory reason for the alleged adverse action. Then the burden shifts back to the plaintiff to show defendant’s proffered reason is in fact pretext for discrimination. To establish a prima facie showing of discrimination, the plaintiff must show: (1) the employee is a member of a protected class; (2) the employee was qualified for the position he held; (3) the employee suffered an adverse employment action; and (4) the adverse action took place under conditions giving rise to an inference of discrimination.

In Codada, the court found that there was a factual dispute regarding whether the employee could show pretext because an employee must submit evidence which (1) casts doubt upon the legitimate reason proffered by the employer such that a fact-finder could reasonably conclude that the reason was a fabrication; or (2) would allow the fact-finder to infer that discrimination was more likely than not a motivating or determinative cause of the employee’s termination. The court found that the employee could proceed to trial because in addition to presenting conditions supporting an inference of discrimination, the employee averred he received authorization to clock in before his scheduled shift and whether he was authorized to do so, an issue of fact for a jury to decide.

In order to establish a prima facie case of retaliation, an employee needs to show that: (1) the employee engaged in a protected activity; (2) the adverse action by the employer was taken contemporaneously with or after the employee engaged in the protected activity; and (3) a causal connection between the protected activity and the adverse action. In Codada, the court found that the employer’s contention that the employee did not engage in a protected activity was frivolous because it was undisputed the employee objected to his treatment and accused a supervisor of discriminatory treatment on account of his race at a meeting and thereafter the employee filed a charge of discrimination with the EEOC. While the court found a “relatively long lapse of time between the employee ‘s alleged protected activities” (June 2011, September 2011, and April 2012) and his termination (July 2012), which does not allow the conclusion of a per se inference the termination was causally connected to the protected conduct, the timing of the actions (temporal proximity) is not the exclusive way to show causation, as a court is permitted to conclude that the proffered evidence looked at as a whole, may suffice to raise the inference. In Codada, the court found that there was evidence of a general environment of hostility and discrimination and several adverse actions with temporal proximity to protected conduct which were sufficient to create triable issues of fact as to whether there was a causal connection between the employee’s activities and the adverse employment actions.

For more information on race discrimination, national origin discrimination , retaliation and Abramson Employment Law, see http://www.job-discrimination.com/lawyer-attorney-1126519.html, on see http://www.job-discrimination.com/lawyer-attorney-1126498.html.

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Race Discrimination & Retaliation: Employee has Viable Claims for Race Discrimination, Hostile Work Environment & Retaliation

When an employee of one race is treated differently that similarly situated employees of another race, the employee files a race discrimination complaint and is ultimately terminated, an employee has claims for both race discrimination and retaliation for engaging in protected activity. These claims are illustrated in a recent case, Childress v. Colvin, 2014 U. S. Dist. Lexis 25878 (E. D. Pa. February 28, 2014)(Jones, J.), where the Plaintiff employee was employed for 11 years by the Social Security Administration as a computer specialist and web developer and was the only African-American employee on her assigned team throughout her employment. Initially, the employee excelled and received a number of awards and was selected to participate in a regional management development program, a course developed to identify potential management candidates and develop employees for advancement. After the employee accepted the opportunity and participated in 14 months of training, she returned to her job and received a satisfactory job performance review, however, 6 weeks later she received a performance improvement plan without any notice or warning. The employee then complained to an Equal Employment Officer, participated in alternative dispute resolution, and then filed a formal complaint which was later settled. The employee’s supervisor then resigned and the employee alleged that the new supervisor began an intense campaign intending to evict the employee from her position by giving her difficult work assignments with arduous deadlines not given to Caucasian employees; and denying her the best and most visible work projects, instead giving the projects to Caucasian employees. The employee then filed another complaint but she continued to be treated poorly, receiving reprimands for minor issues, while Caucasian employees received no such treatment. The employee made several requests for a transfer, but her requests were denied without explanation, even though she was qualified for the open positions while Caucasian employees and those who had not filed complaints submitted similar requests were granted transfers during the same time period that the employee applied for open positions. The employee also alleged that she was denied core training, which was nonetheless offered to at least 6 Caucasian employees. In Childress, the employee was ultimately terminated and she filed claims for race discrimination, hostile work environment claim, and retaliation for engaging in protected activity.

To state a claim for racial discrimination under federal law, a plaintiff employee must establish that (1) she is a member of a protected class; (2) she was qualified for the position she held or sought; (3) she suffered an adverse employment action; and (4) similarly situated employees who are not members of the protected class were treated more favorably, or that the circumstances of an employee’s termination give rise to an inference of discriminate Applying this standard in Childress, the Court found that the Plaintiff employee could proceed with her race discrimination claim because she made numerous allegations indicating that she was treated less favorably than similarly situated Caucasian employees during a 5 year period which raises a plausible inference of a pattern of discrimination spanning more than 5 years.

To properly plead a claim for hostile work environment based on race, a plaintiff employee must allege she suffered intentional discrimination because of her membership in a protected class; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected her; (4) the discrimination would have detrimentally affected a reasonable person in the same position; and (5) the existence of respondeat superior liability (the employer is responsible for the actions of the harasser). The conduct in question must be so severe or pervasive that it creates an objectively hostile work environment and to evaluate this factor courts must consider the totality of the circumstances and analyze the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. In Childress, the Court found that a review of the complaint shows that the Plaintiff employee alleged that similarly situated Caucasian employees were given more favorable assignments, that her supervisor would gossip about plaintiff and deride her work product to other employees, that she was treated more harshly than Caucasian employees when she did not perform well or returned from a break late, that her superiors withheld work from her and instead gave the work to Caucasian employees, and that she was denied transfer requests that were granted to other employees, all of whom were Caucasian. As such, the Court found that the allegations hardly amount to isolated or single incidents of harassment, consequently, the conduct at issue was pervasive and regular harassment and would undoubtedly have a detrimental effect on a reasonable person.

In Childress, the Plaintiff also successfully stated a retaliation claim. Retaliation at the workplace is considered protected activity. It is unlawful for an employer to take action against an employee for or making charges, testifying, assisting, or participating in discrimination enforcement proceedings. When analyzing retaliation claims, the timing between the protected activity and the adverse employment action is important in order to determine if it is unusually suggestive of motive. In Childress, the plaintiff employee alleged that she complained to an Equal Employment Officer in August 2007, participated in alternative dispute resolution process in September 2007, filed a formal complaint on October 2007, and filed a formal EEO complaint in February 2011 and December 2012, which the court found to be undoubtedly protected activity because acceptable forms of protected activity include formal charges of discrimination as well as informal protests of discriminatory employment practices such as making complaints to management. The Court found that the timing between protected activity and these employees’ actions certainly raises a plausible inference of retaliation, culminating in the denial of the plaintiff employee’s transfer requests and ultimately the termination of employment.

For more information on race discrimination, retaliation and Abramson Employment Law, see http://www.job-discrimination.com/lawyer-attorney-1126519.html, on see http://www.job-discrimination.com/lawyer-attorney-1126498.html.

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Sexual Harassment: Employer Liable for Ignoring Repeated Sexual Harassment Complaints by Employee

An employer which is presented with claims of repeated sexual harassment and fails to take action against the harassers exposes the employer to a significant sexual harassment claim. In Standen v. Gertrude Hawk Chocolates, Inc., 2014 U.S. Dist. LEXIS 20075 (M. D. Pa. February 19, 2014) (Munley, J.), the plaintiff, a female employee was employed at a candy factory. The sexual harassment became so severe that the employee took FMLA leave for and while out on FMLA leave, resigned from her position, alleging that prior to resigning for 6 years she had been the victim of sexual harassment, numerous unwelcome and unwanted physical touchings and was subjected to a severe and pervasive sexually hostile work environment by three male employees. The employee filed numerous complaints with her supervisors up to and including defendant’s Chief Executive Officer and also repeatedly registered verbal complaints of sexual harassment with the Human Resources Manager. The employee filed a sexual harassment hostile work environment claim pursuant to Title VII which as it relates to sex provides that it shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s sex.

Title VII prohibits sexual harassment that is sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. Hostile work environment claims require a plaintiff to establish five elements: (1) the discrimination was intentional and because of the plaintiff’s sex; (2) the discrimination against plaintiff was severe or pervasive; (3) the discrimination had a subjective detrimental effect on the plaintiff; (4) the discrimination was objectively detrimental; and (5) respondeat superior liability (which determines if the employer is liable for the actions of employees). To satisfy the intentional discrimination because of sex requirement, an employee must demonstrate that sex was a substantial factor in the alleged harassment and that if she were a male, she would not have been treated in the same manner. In Standen, the employee met this requirement by testifying that her co-workers subjected her to a barrage of sexually charged comments, innuendos, propositions and gestures including sexually graphic comments; grabbing the employee around her neck, choking her, and saying “I know you like it rough”; summoning the employee into an office and stating, “Hey! we got your Christmas present!” whereby a coworker held up a vibrating tool and thrust it towards Standen’s genitals; and routinely coming up from behind the employee to lean in and smell her in a sexual fashion while the coworker pushed his groin into her; and demanding the employee walk ahead to admire her physique while making sexually suggestive remarks pertaining to her buttocks.

To determine if harassment is severe and pervasive, the totality of the circumstances must be examined, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” In Standen, the Court found that these incidents occurring over a 6 year period involved similar conduct by the same individuals suggesting a persistent, ongoing pattern which a reasonable jury could conclude that the discrimination was severe or pervasive. While psychological harm is not required, effect on the employee’s psychological well-being is relevant. In Standen, the employee met this burden by testifying that she was actively treating for depression and anxiety, that she attempted to take her own life and showing that the atmosphere in defendant’s factory was that of a “boy’s club,” and the men in the shop were untouchable.

The final hostile work environment element is respondeat superior liability which requires evidence that the defendant knew or should have known of the harassment and failed to take prompt remedial action. Thus, if a plaintiff employee proves that management-level employees had actual or constructive knowledge about the existence of a sexually hostile environment and failed to take prompt and adequate remedial action, the employer will be liable. In Standen, the employee easily met this requirement by showing that she complained to management about the sexually harassing behavior.

Standen also shows that arguments by employers that employees wait too long to file sexual harassment claims that occur over a substantial period of time can be overcome by the continuing violation doctrine, which provides discriminatory acts that are not individually actionable may be aggregated to make out a hostile work environment claim if at least one act occurred within the requisite filing period (180 days under Pennsylvania law and 300 days under federal law) and that the harassment is more than the occurrence of isolated or sporadic acts of intentional discrimination; stated differently, a court must determine if the violations constitute the same type of discrimination and that at least one act falls within the applicable limitations period.

For more information on sexual harassment and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-2130161.html.

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FMLA Retaliation & Disability Harassment: Employee Who Suffers Adverse Action Following Leave Has Viable Claims

When employees take leave from work due to a medical condition and are subject to retaliation upon their return to work, both the Family and Medical Leave Act (FMLA) and disability discrimination laws can provide a legal basis for a claim. In DeMeo v.The Vanguard Group, Inc., 2014 U.S. Dist. LEXIS 8877 (January 21, 2014, Rufe, J.), the Plaintiff employee, who worked for the employer for 17 years, began to have problems at work with his team leader which intensified after an initial return from leave from FMLA and ultimately, the employee later taking a second leave and never returned to work.

In DeMeo, the employee filed FMLA retaliation and disability harassment claims against the employer. To prevail on a FMLA retaliation claim a plaintiff employee must prove that (1) the employee invoked the right to FMLA-qualifying leave, (2) the employee suffered an adverse employment decision, and (3) the adverse action was causally related to the invocation of FMLA rights. FMLA claims based on circumstantial evidence are analyzed under a burden-shifting framework where the Plaintiff has the burden of making a prima facie case that he has satisfied each element; Defendant then has the minimal burden of producing some legitimate reason for its employment action’s, then the burden shifts back to Plaintiff to point to some evidence, direct or circumstantial, from which a fact finder could reasonably disbelieve the employer’s articulated non-discriminatory reason.

In DeMeo, the court found that the plaintiff employee met his initial FMLA retaliation burden by arguing argued that after his FMLA leave, his managers increased his workload, would not meet with him when he wanted to, and gave him a false and harshly negative end of the year performance review that caused him to receive less pay than he deserved. The court found this evidence met the initial burden of stating a prima facie case that the employer took adverse employment action against him: he took FMLA leave; his relationship with his employer deteriorated; and shortly after the end of the FMLA leave, the employee felt compelled to take a second leave to avoid his supervisor. The court also found that the employer met its burden of pointing to facts that could allow a fact finder to conclude that its actions were justified because performance reviews before and after leave were quite similar in their overall negative ratings, and that it could be argued that the supervisors actions were not adverse employment actions because they did not prevent the employee from continuing to complain about supervisor. Ultimately, the court concluded that a jury could find FMLA retaliation because a subsequent near-violent outburst by the supervisor could have caused a reasonable employee to seek a transfer outside of the supervisor’s department and also caused the employee to leave on the same day the supervisor confronted him.

The court also found that the employee had a viable “disability harassment” claims under the Americans with Disabilities Act (ADA) and the Pennsylvania Human Relations Act (PHRA) where an employee must establish that: (1) he has a disability under the ADA; (2) he was harassed; (3) the harassment was based on his disability or a request for an accommodation; (4) the harassment was sufficiently severe or pervasive to alter the conditions of his employment and to create an abusive working environment; and (5) that the employer knew or should have known of the harassment and failed to take prompt effective remedial action. The court found that for the same reasons that a fact finder could conclude that the supervisor acted in response to the employee’s exercise of his rights under the FMLA, it could also conclude that he was prejudiced against the employee for exhibiting symptoms of depression and that his prejudice translated into abusive behavior.

To decide the disability harassment claim courts must consider all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. In so doing, in Demeo, the Court focused on the supervisor, the frequency and severity of his alleged bad behavior toward the employee which increased in the time immediately following the employee’s return from FMLA leave, and the employee’s testimony which were found sufficient to conclude that the supervisor’s confrontation of the employee, when he raised his voice, waved his arms, and was perceived as aggressive, was physically threatening. Moreover, the court held that a fact finder could conclude that the supervisor’s actions unreasonably interfered with the employee’s performance, since the employee suffered a panic attack, requested a transfer, and left work immediately after the confrontation. Although the confrontation was the culminating event of alleged harassment, it was not the only event that made the employee uncomfortable at work, particularly with the supervisor. The court also pointed to evidence that the employee contends that the supervisor had given him a bad performance review upon his return from leave and had failed to supervise him, facts which suggest the supervisor’s antipathy toward the employee. Because the parties genuinely dispute the significance of the facts related to the supervisor and the facts are amenable to different interpretations, the court held that summary judgment is inappropriate on the employee’s ADA harassment claim.

For more information on the FMLA, Disability Discrimination and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-1126523.html,, http://www.job-discrimination.com/lawyer-attorney-1126511.html.

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