In a recent unpublished decision, the Fifth Circuit reversed the grant of summary judgment in favor of the employer. Monica Hague formerly worked for the University of Texas Health Science Center t San Antonio. Ms. Hague worked in the Emergency Health Services Department. She worked on a contract basis for a set time period. Her contract was renewed twice before it was non-renewed in 2011. She complained about her supervisor, Dr. Manifold, when he read a sexually explicit magazine out loud during a department meeting. Ms. Hague filed a written complaint alleging sexual harassment by Dr. Manifold for this and for another incident. UTHSC found that Dr. Manifold’s actions did not rise to the level of sex harassment. But, the university did find that his actions did constitute "sexual misconduct" and were unprofessional.
Ms. Hague also filed a complaint about the department head, Dr. Villers, alleging differential treatment. He was found innocent, but the university recommended changes in how he communicates. Ms. Hague then filed a charge of discrimination with the EEOC. Soon after, her contract was not renewed. The university received formal notice of her charge a few days after her contract was non-renewed. Ms. Hague filed suit, alleging discrimination and retaliation. The employer successfully moved for summary judgment on all counts.
In its opinion, the Fifth Circuit noted that while Ms. Hague did allege "harassment" in general with the EEOC, she did not specifically mention "sex harassment." Ms. Hague did not include sexual harassment on her intake sheet with the EEOC. The lower court found, and the Fifth Circuit agreed, that Ms. Hague did not exhaust her administrative remedies. That is, she did not provide the EEOC with that specific charge, so it was supposedly not addressed by the EEOC. Since she did not exhaust her administrative remedies, she cannot later file suit on that cause of action. Ooops.
It is easy to criticize Ms. Hague, but in reality, most persons file their charge with the EEOC without an attorney. Most charging parties rely on the EEOC for guidance. One could well argue that it is unfair of the courts to hold Ms. Hague to standards imposed upon lawyer-assisted parties. The employer would argue that the plaintiff should not be able to file a complaint that was not addressed by the EEOC. But, the reality is that the EEOC addresses very few things and conducts very few actual investigations.
Ms. Hague’s claim of sexual harassment also fails because Dr. Manifold was not her supervisor. He was not in a position to take any tangible action against her. The court notes there were only two incidents of sexual harassment and only one of those was directed at Ms. Hague.
Teaching point: to show harassment (sexual or otherwise,) one needs more than two incidents. A sustained pattern over a sustained period of time is preferable.
Regarding the claim of retaliation, the decision is more complicated. The lower court found the plaintiff had not made out a prima facie case of retaliation because temporal proximity alone is not enough to show retaliation. The appellate court noted, however, that the plaintiff advanced a theory of retaliation based on pretext, not on temporal proximity.
The elements of retaliation include:
- the employer participated in a protected activity (i.e., complained about discrimination or testified in support of co-workers who complained)
- the employer took some tangible action against the employee, and
- a causal connection exists between the protected activity and the adverse employment action.
The Fifth Circuit majority found that the plaintiff had presented substantial evidence of pretext, so as to avoid summary judgment. The employee noted her positive job evaluations and the fact that other female employees who supported her discrimination complaints were also non-renewed or terminated.
And, Dr. Villers’ alleged reason for the termination of Ms. Tarango had changed over time. Ms. Tarango was the other victim of Dr. Manifold. She had provided information during the EEO investigation. She was initially told she was terminated because of budgetary issues. But, later in a deposition, Dr. Villers said it was because they needed someone with a higher level of experience. A fact-finder is entitled to an opportunity to infer pretext if the reasons change. A third woman was also terminated and her reasons also changed over time.
And, Dr. Villers testified that he terminated Ms. Hague due to "issues of trust." He referenced a grievance she and filed against him. He insisted it was not the filing of a grievance, but the substance of the grievance. Still, said the appellate court, that was enough.
Indeed, it is enough. "issues of trust" is a very ambiguous complaint about an employee. An employer really needs to be able to point to something objective when s/he fires a worker in any situation, but especially in a situation with reasonable complaints of discrimination. I am surprised summary judgment was granted in this set of facts, at all. After all, "issues of trust" is often just another way of saying, "she filed against me and might do it again."
And, it surely helped the plaintiff’s cause that her supervisor testified on her behalf and rebutted the university’s claims of poor job performance. See decision here.