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Fourth Circuit Holds That Harassed Employee Suffered Tangible Employment Action

The United States Court of Appeals for the Fourth Circuit – which covers Maryland, Virginia, West Virginia, and the Carolinas – has long been thought of as a “pro-employer” court in discrimination cases. Recently, that image has begun to change, and the Court’s recent decision in Dulaney v. Packaging Corp. of Am., No. 10-2316 (3/12/12) is the latest evidence of that change.

In Dulaney, the Plaintiff was a former factory worker in Roanoke, Virginia. She claimed that a lead production worker (she had no supervisor on her shift) screamed at her and spread rumors about her until she ultimately acquiesced to his demands for sex.  When she complained to human resources about his behavior, the company presented her with a severance agreement and told her she could either sign it that day or be fired. She refused to sign, and was escorted out of the building.

The District Court granted summary judgment to the employer on the grounds  that she was not actually fired, and therefore suffered no tangible employment action. The Fourth Circuit reversed, holding that being escorted off the premises and labeled as “terminated” in internal documentation does amount to a tangible employment action that precludes an employer from taking advantage of the Ellerth/Faragher affirmative defense.

Although the fact of the Dulaney decision seem rather extreme, the case does show that the Fourth Circuit will not just “rubber stamp” a trial court’s grant of summary judgment.

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