The Third Circuit Court of Appeals recently issued a precedential Opinion, embracing the “Me Too” movement, in overturning the dismissal of a plaintiff’s sexual harassment claim because questions of fact existed whether the employer exercised reasonable care to prevent and correct sexual harassing behavior and whether plaintiff’s failure to avail herself of the employer’s anti-sexual harassment policy was reasonable due to her alleged fear of retaliation. As a consequence of the Third Circuit’s Opinion in Minarsky v. Susquehanna County, et al., employers must remember the importance of having an effective anti-sexual harassment policy that is known and taken seriously by its employees and properly enforced by management.
Summary of the Facts
Plaintiff Sheri Minarsky was a former part-time secretary for Defendant Susquehanna County (the “County”). In this role, she worked one day a week for Defendant Thomas Yadlosky, Jr., the former Director of the Department of Veterans Affairs. Significantly, on her first day of work, Minarsky reviewed and signed the County’s General Harassment Policy, which prohibited harassment and directed employees to report any such behavior to their supervisor, the Chief County Clerk (the “Chief Clerk”), or a County Commissioner.
In this case, Minarsky alleged that, shortly after she started working for the County in September 2009, Yadlosky began sexually harassing her in the workplace by attempting to kiss her on the lips, grabbing her from behind, and massaging her shoulders on a weekly basis. In addition, she alleged that Yadlosky engaged in other inappropriate behavior such as questioning her about her whereabouts during lunch, calling her at home on her days off under the pretense of work-related questions, and sending her sexually explicit messages from his work e-mail.
On two separate occasions, Yadlosky’s supervisor (the Chief Clerk) became aware of his inappropriate behavior towards other women and verbally reprimanded him. In 2009, the Chief Clerk witnessed Yadlosky embrace another female employee. Thereafter, in late 2011 or early 2012, a County Commissioner reported to the Chief Clerk that she witnessed Yadlosky hug and kiss the Director of Elections. Minarsky was aware that Yadlosky was verbally reprimanded for his inappropriate behavior towards the other female employee in 2009. Yet, following these incidents, there was no further action or follow-up by the County beyond the verbal reprimands.
During the four years that she was allegedly harassed by Yadlosky, Minarsky never reported him to either the Chief Clerk or any of the County Commissioners as directed by the County’s General Harassment Policy. Instead, Minarsky alleged that she feared her employment would be terminated if she elevated her claims because Yadlosky had repeatedly told her not to trust the County Commissioners and was unsuccessfully reprimanded for his inappropriate behavior towards other female employees in the past.
Eventually, in July 2013, Minarsky confronted Yadlosky about his inappropriate behavior through an e-mail. Around this same time, Minarsky confided in a friend and co-worker about Yadlosky’s harassment. Shortly thereafter, a supervisor overheard her friend discussing Minarsky’s situation with another employee and reported Yadlosky’s conduct to the Chief Clerk. After the Chief Clerk interviewed Minarsky, Yadlosky admitted her allegations were true and his employment was terminated.
The District Court’s Ruling
Following discovery, the County moved for summary judgment arguing, in part, that Minarsky’s hostile work environment claim should be dismissed based on the Faragher-Ellerth affirmative defense. To prevail on this defense, the County was required to demonstrate: (1) that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and (2) that Minarsky unreasonably failed to take advantage of any preventive or corrective opportunities provided to her by the County.
The District Court adopted the Magistrate Judge’s Report and Recommendation, finding that the County had satisfied the Faragher-Ellerth defense, and therefore granted the County’s Motion for Summary Judgment. First, the District Court held that the County acted reasonably by maintaining an anti-harassment policy, reprimanding Yadlosky for his inappropriate conduct in the past, and promptly terminating him once his misconduct toward Minarsky was discovered. Second, the District Court found that Minarsky’s silence and failure to report the harassment for a prolonged period of time was unreasonable.
The Appeal
On appeal, the Third Circuit disagreed and found that questions of material fact existed for a jury to decide, such as whether the County exercised reasonable care to prevent and correct the sexual harassing behavior and whether Minarsky’s reaction in not reporting Yadlosky for fear of retaliation was reasonable.
In regards to the first element of the Faragher-Ellerth affirmative defense, the Third Circuit held that the County’s verbal reprimands were not so clearly sufficient to warrant dismissal. Rather, the Third Circuit determined that there was evidence demonstrating that the Chief Clerk and at least two County Commissioners were aware of Yadlosky’s pattern of inappropriate behavior towards women in the workplace, but turned a blind eye towards the harassment.
As to the second element, the Third Circuit found that it could not ignore Minarsky’s testimony explaining why she did not report Yadlosky’s conduct, including: (1) her fear of his hostility on a day-to-day basis and retaliation by having her fired; (2) her worry of being terminated by the Chief Clerk; and (3) the futility of reporting, since others knew of his conduct, yet it continued. In holding that a jury could find that Minarsky acted reasonably under the circumstances, the Third Circuit discussed the “Me Too” movement at length – specifically, the pervasiveness of unwanted sexual advances by male coworkers in the workplace and the reluctance to report such conduct. In fact, the Court directly noted that “[t]his appeal comes to us in the midst of national news regarding a veritable firestorm of allegations of rampart sexual misconduct that has been closeted for years, not reported by the victims.”
The Bottom Line
“Me Too” has moved from the court of public opinion to a Third Circuit Court of Appeals’ decision to reinstate a hostile work environment claim. While it is not unprecedented for courts to refer to related news and current events in their opinions, employers must be aware of the potential impact that this prevalent international movement may have on the future application/interpretation of anti-harassment laws by the judiciary.[1]
In the context of this specific case, it is critical for employers to not only understand the importance of having an effective anti-sexual harassment policy that includes a rigorous complaint procedure, but also to ensure that: (1) the policy is communicated and known to all employees; (2) employees understand the policy is taken seriously by the employer and they will not be retaliated against for reporting any alleged inappropriate conduct; and (3) all employees (including management) receive proper training related to the policy and sexual harassment in the workplace. Please do not hesitate to contact us with any follow-up questions or concerns.
[1] Claimants have attempted to and will continue to incorporate the “Me Too” movement and highly publicized sexual harassment allegations into their cases. Indeed, in Ballard v. AT&T Mobility, Inc., et al., the Honorable Michael A. Shipp, U.S.D.J., recently denied a plaintiff’s motion, which argued that the dismissal of her sexual harassment claims should be set aside because of an alleged change in society after the Harvey Weinstein allegations. In denying the motion, Judge Shipp found that plaintiff’s “sweeping assertions about the behavior of corporations before and after allegations of sexual harassment about Harvey Weinstein” were not relevant to any of the parties and had no bearing on the Court’s prior dismissal.