Seyfarth Synopsis: The Fourth Circuit revived the retaliation case of a former city employee who was terminated one day after expressing an intent to file a formal grievance against her supervisor for race-based harassment, finding the plaintiff's belief that she was being subjected to unlawful harassment to be reasonable – and noting that the city was on notice of objectionable behavior by the supervisor for some time.
When Felicia Struthers interviewed for an administrative assistant job with the city of Laurel, Maryland, three out of four of her interviewers were persuaded that she was the best and "most qualified" applicant, and she was given a job offer. Unfortunately, the interviewer who disagreed was to become her immediate supervisor. According to Struthers' second-level supervisor, her direct supervisor had wanted to hire "someone of a different race." Strothers v. City of Laurel, Maryland, No. 17-1237 (4th Cir. July 6, 2018). Despite this opposition, Struthers was extended a job offer.
From the inception of her employment, Struthers experienced difficulty with her immediate supervisor. Prior to beginning employment, Struthers negotiated a 9:05 a.m. starting time to enable her to put her children on the school bus. On her very first day, her supervisor marked her tardy, then overruled management's agreement to allow Struthers to start five minutes after the office opened – demanding instead that Struthers report to work at 8:55 a.m., before the office was officially open for the day. The clashes continued, with Struthers' supervisor insisting that Struthers ask permission before every bathroom break and report how long she spent in the bathroom; reprimanding her for alleged lack of teamwork; giving her a negative performance evaluation; and on one occasion, grabbing Struthers' pants in an attempt to establish a dress code violation. Struthers believed that she was being harassed because of her race – a belief bolstered by her second-level supervisor's admission that the immediate supervisor had wanted to hire someone of a different race, and by the complaints of former employees, African-American like Struthers, who had also felt harassed by the supervisor.
Struthers complained internally about her supervisor's behavior on several occasions. Finally, she requested a grievance form, indicating that she planned to file a formal grievance the next day – but before she could do so, the City discharged her for "tardiness." Struthers filed claims of race discrimination and retaliation; while the EEOC dismissed her discrimination claim, her retaliation claim advanced to federal litigation, where the City prevailed on summary judgment.
Struthers appealed, and in a decision published in July, the Fourth Circuit overturned the District Court's grant of summary judgment to the City. The District Court had based its decision on a conclusion that Struthers could not possibly had a reasonable belief that the conduct of which she complained was based on her race. The Fourth Circuit disagreed, noting that the City itself had injected Struthers' race into the conversation when, during one meeting, Struthers' second-level supervisor had admitted that her immediate supervisor wanted to hire a white applicant for her job. Struthers' reasonable belief was further bolstered, the Fourth Circuit noted, by other African-American former employees who had told her that they themselves felt harassed by the same supervisor, also because of their race, and by the fact that Struthers knew that her supervisor had only ever surveilled and reported policy violations upon other African-American employees.
The Court concluded that a reasonable jury could find that Struthers' belief that she was being harassed because of her race was indeed reasonable. The Court further found that a reasonable jury could find that the supervisor's behavior – including requiring Struthers, and Struthers alone, to report all time spent in the bathroom, and on one occasion lunging at and grabbing Struthers' pants – to be sufficiently severe or pervasive to support a hostile work environment claim, and that the City's action in firing Struthers the very day after she expressed intent to file a grievance was so temporally close to her protected activity as to create an inference of retaliatory animus. Based on these findings, the Fourth Circuit concluded that the District Court had erred in dismissing the case, and remanded it for further proceedings.
Takeaway for employers: The Court noted that the City was on notice, and had been for some time, of a rogue supervisor who had already been the subject of multiple complaints by African-American employees. If there is a lesson for employers to learn from this case – which is still pending – it is that no employer can afford to bury its head in the sand. Where there is smoke, there is at least the possibility of fire, and to safeguard the interests of the organization, employee complaints should be taken seriously and addressed promptly.
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