U.S. Justice Department Files Sexual Harassment Lawsuit Against Scotland County Agency and Employees

Earlier this month the United Sates Justice Department filed a sexual harassment lawsuit against Southeastern Community and Family Services, Inc., which is a public housing agency that administers the federal Section 8 voucher program in Scotland County.  The complaint, copied here, also names as defendants John Wesley, the Section 8 housing coordinator, and Eric Pender, a housing inspector. 

Generally, the complaint alleges that Wesley and Pender subjected voucher program participants and applicants to unwanted sexual comments, sexual touching and other sexual acts, and even conditioned or offered Section 8 benefits in exchange for sexual acts.  The complaint also alleges that the men punished women who rebuffed their sexual advances by taking adverse housing actions against them.  The claims are pursued under both Title VII of the Civil Rights Act of 1964 and the Fair Housing Act.

According to the complaint, Wesley's harassment dates back to the year 2000 and includes such acts as making unwelcome comments and sexual advances to applicants, touching applicants and himself (in their presence) in a sexual manner, and even exposing his genitals in the presence of Section 8 applicants and participants.  He is also alleged to have used the women's responses to his sexual advances as a basis for advancing or hindering applications for benefits.  Similar misconduct is alleged against Pender.  In these ways the complaint alleges sexual harassment of both the hostile work environment and quid pro quo varieties, albeit outside of the employer-employee relationship.

The action is notable in several respects.  First, it serves as a reminder of the kinds of comments and actions that frequently lead to sexual harassment litigation.  In addition, it confirms that sexual harassment presents a liability risk for employers not only as to employee victims, but also as to third-parties who are affected by the misconduct. The case also serves as a reminder that governmental entities are not immune from liability for sexual harassment.  Finally, we see that sexual harassment is prohibited not only by Title VII but by other federal laws prohibiting discrimination and that federal agencies other than the EEOC enforce the prohibition against sexual harassment.

Fourth Circuit Finds Plaintiff’s Allegations of Sexual Harrassment Sufficient to State a Claim for Relief

On December 1, 2012, in the case of Sheila Davis v. City of Charlottesville School Board, the Fourth Circuit Court of Appeals (the Circuit with jurisdiction over North Carolina's federal courts) vacated a District Court’s dismissal of a sexual harassment complaint filed by Sheila Davis against the City of Charlottesville School Board.  Presently, only the slip opinion is available; click here to view the slip opinion.

As the opinion explains, in order to establish a claim for coworker sexual harassment under federal law, a plaintiff must demonstrate that the conduct was unwelcome, that it was based on gender, that it “was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment,” and that it is “imputable to her employer.” See, e.g., Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 331 (4th Cir. 2003).

Ms. Davis alleged that she was the subject of an attempted sexual assault by a coworker and that she immediately reported the incident to a supervisor. She alleged that she then suffered an unwanted intimate touching by the same coworker the very next day. The district court concluded that Ms. Davis had not alleged any facts that would entitle her to relief and dismissed her complaint. The Fourth Circuit disagreed. It found that the facts alleged by Davis, including the physical nature of the harassment, stated a plausible claim that the assault was “sufficiently severe or pervasive” to survive dismissal. Furthermore, the Fourth Circuit held that Ms. Davis sufficiently alleged facts that could demonstrate liability on behalf of her employer, since she immediately reported the harassment and the harassment occurred again thereafter.

In sum, the Fourth Circuit held that Ms. Davis’s original complaint was sufficient to state a plausible claim for relief, and the district court’s judgment was reversed and remanded. The opinion is notable inasmuch as it confirms that even misconduct that is limited in frequency can suffice to establish a sexual harassment claim when the conduct is severe in nature.

The Davis case reaffirms the difficulties posed by allegations of workplace sexual misconduct.  Even in traditionally conservative federal circuits, when sexual misconduct is alleged to have recurred after reporting, such cases will almost surely reach a jury for final determination. If you are confronting issues of work place harassment, it is important to speak with experienced North Carolina employment lawyers. Please feel free to contact me directly at (336) 333-6375 to discuss the case or other North Carolina employment law matters.  For more information about my Greensboro law firm of Sharpless & Stavola, please visit our website at www.sharpless-stavola.com. 

Court Orders Production of E-mails in Employment Discrimination Case

A recent federal case from the Eastern District of North Carolina demonstrates the importance of electronically stored information, or “ESI,” in employment discrimination litigation.  In Freeman v. Dal-Tile Corp., 2012 Westlaw 4577718 (E.D.N.C. 2012) a former employee alleged that she suffered both sexual harassment and racial harassment, as well as a discriminatory discharge and retaliation, at the hands of her former employer.  In an effort to develop these theories, the plaintiff’s lawyers served several interrogatories and requests for production of documents aimed at discovering electronically stored information sent to or received by several specifically identified employees.

In opposing the requests, the employer argued, in part, that electronically stored information generated after the plaintiff’s termination of employment would be irrelevant and, therefore, not discoverable.  The plaintiff, in turn, moved the court for an order compelling production of the requested information.

After summarizing the broadly construed standard of relevance applicable to civil discovery, the court noted that e-mails generated within two months after the termination could contain pertinent historical information, such as “e-mail chains.”   Because the identified e-mail custodians included the HR officer responsible for investigating the plaintiff’s complaints and a regional vice president to whom the findings were reported, the court also found it reasonable to expect these individuals to possess relevant information. 

The court also found the list of search terms reasonably related to the plaintiff’s claims of harassment on the basis of sex and race.  The plaintiff’s lawyers had limited the scope of the requests by identifying specific ASCII strings that would enable keyword searches of preserved e-mails and computer hard drives.  Finding the listed ASCII strings appropriately limited in number and scope, the court agreed with the reasonableness of this requested search method.

Finally, the court dispensed with an argument that production of e-mails could be avoided because the plaintiff did not allege that she had been harassed via e-mail.  The court noted that an issue in the case would be the employer’s knowledge of the harassment and its response to the harassment.  E-mails involving the identified persons and containing the identified search terms could prove relevant to these issues.

For these reasons, the court granted the plaintiff’s motion to compel.  The employer was ordered to conduct a keyword search of preserved e-mails from a two and one-half year period, as well as an image and keyword search of its HR officer’s computer hard drive.

The case illustrates the potential significance of ESI in harassment litigation.  As the ruling confirms, e-mails and other ESI can be used not only to prove the occurrence of harassment, but also the employer’s knowledge and response to it.  The case also reflects the courts’ willingness to require reasonably tailored text searches of ESI.