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An Employer’s Statements Can Elevate An Employee’s Complaint Into Protected Activity

The Fourth Circuit Court of Appeals has given new life to a plaintiff’s retaliation claim under Title VII of the Civil Rights Act of 1964.  Strothers v. City of Laurel, 2018 U.S. App. LEXIS 18417 (4th Cir. July 6, 2018).  The Court concluded that the plaintiff reasonably believed that she was harassed because of her race and her former employer knew that she was complaining about conduct that possibly violated Title VII.

The City of Laurel hired Felicia Strothers (African-American) in August 2013 as an administrative assistant in the City’s Communications Department.  The City fired Strothers on March 7, 2014, after a seven-month period in which one of Strother’s supervisors monitored her every move, berated her, and disciplined her for doing things she had received permission to do.

Strothers was interviewed by four City employees.  One of the individuals, Carreen Koubek, did not want to hire Strothers (more on this later).  Three of the four City employees thought Strothers was the best applicant for the position.  When the department director offered Strothers the position, Strothers told him that she could not report to work until 9:05 a.m. — the normal start time was 9:00 a.m. — because of her children’s school bus schedule.  The department director and Strothers agreed to an accommodation.

Despite the agreement, Koubek, who knew of the arrangement, began marking Strothers as tardy on the first day of her employment.  Koubek also kept a detailed daily log of Strothers’ comings and goings, including when she went to the restroom and returned.  As the court explained, “Even when Strothers received permission to use the restroom, Koubek faulted Strothers for not reporting when she was done.”

Koubek also “faulted Strothers for lack of teamwork” after Strothers made a non-work-related massage appointment for the department director.  Koubek was apparently upset that Strothers had not made a massage appointment for her too.  Koubek wrote, “Nothing was said to me if I wanted to be included.  Seems petty, but speaks volumes to lack of team work.”

Koubek’s treatment of Strothers continued when she singled out Strothers for wearing black jeans on a casual Friday.  Koubek grabbed at Strothers’ pants, circled Strothes, lunged at her, and even berated her for her choice of pants.  When Strothers offered to change her pants, Koubek required that she take personal leave for the time it took to do so.

Despite acknowledging that Strothers did everything she was asked to do, Koubek gave Strothers a negative three-month evaluation.

Strothers reported Koubek’s behavior to the City.  In response to Strother’s report, the department director, told Strothers that Koubek — the only individual on the interview panel who did not want to hire Strothers — said she wanted to hire someone of a different race than Strothers.  Strothers then told a City Council member that she thought Koubek was targeting her because of her race.

Of all of the subordinates Koubek had over the years, Strothers and another black employee “were the only two employees that she had ever disciplined or reported to her superiors.”

On February 26, 2014, Strothers submitted an internal memo to the director about Koubek.  The memo did not mention race, but described Koubek’s actions as harassment and a “hostile environment.”

On March 6, Strothers told the City that she was going to submit a formal complaint on March 7.  Strothers never got around to filing the formal complaint — the City fired her on March 7.

Strothers filed an EEOC charge and then a lawsuit alleging race discrimination and retaliation.  At summary judgment, the district court dismissed the retaliation claim (the race claim had been dismissed earlier) because Strothers could not show that she engaged in protected activity or that the City was aware that she was complaining about race discrimination.

On appeal, Strothers argued that her complaint about harassment was protected activity.  The appellate panel reversed the dismissal in large part because the department director had told Strothers that Koubek had wanted to hire someone who was not black.  The director’s admission “supports a reasonable inference that he thought Strothers’ race explained why Koubek was harassing her.  In other words, Strothers’ employer injected Strothers’ race into the equation and gave her reason to think that her race was relevant to the harassment she was experiencing.”

The Court rejected the City’s argument that Strothers had not engaged in protected activity because her complaint did not expressly refer to racial discrimination.  “In this case, Strothers’ informal memo . . . complained of both ‘harassment’ and a ‘hostile environment,’ both of which can be considered terms of art. . . . [In] certain contexts [these terms] should also be understood . . . to encompass possible discrimination on the basis of other recognized protected statuses.”

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