Third Circuit Decision Sustaining Sexual Harassment Claim Influenced By Impact Of #MeToo Movement
On July 3, 2018, the Third Circuit issued a decision indicating that the #MeToo Movement has caused judges to be more cognizant of the fear of retaliation that victims of sexual harassment frequently feel.
In Minarsky v. Susquehanna County, No. 17-2646, 2018 WL 323243 (3rd Cir. July 3, 2018), Sheri Minarsky, a part-time secretary, brought an action against her employer, Susquehanna (PA) County, asserting claims for gender discrimination as well as sexual harassment through a hostile work environment caused by her supervisor, Thomas Yadlosky.
Minarsky alleged that during the four years she worked for Yadlosky, he regularly harassed her by attempting to kiss her on the lips before he left the office each Friday; approaching her from behind and embracing her; massaging her shoulders and touching her face while she was at her computer or the printer; and sending her sexually explicit emails to which Minarsky did not respond. During her deposition, Minarsky testified that all of Yadlosky’s advances were unwanted.
Minarsky alleged that when the harassment first began, she mildly and jokingly told Yadlosky to stop to no avail. She testified that she feared speaking up because Yadlosky was not fired after other women made complaints about him, and that he would sometimes become “nasty” when challenged. Minarsky further alleged that she did not report Yadlosky’s harassment to his superiors, the County Commissioners and Chief Clerk, because Yadlosky repeatedly warned her not to trust them.
Eventually, however, in April 2013, Minarsky’s doctor told her that she needed to bring an end to Yadlosky’s conduct and she encouraged Minarsky to compose an email to him documenting the conduct. Minarsky followed the doctor’s advice and sent Yadlosky an email on July 10, 2013 stating that she was uncomfortable when he touched and kissed her and asked him to stop. Yadlosky sent an email in response saying that he never meant to make her feel uncomfortable and that she shouldn’t have put her complaint in writing.
Around the same time that the emails were exchanged, a county supervisor overheard another secretary talking about Yadlosky’s harassment of Minarsky. The supervisor reported the conversation to the Chief Clerk, who had previously warned Yadlosky about his inappropriate conduct. The Clerk investigated Yadlosky’s conduct towards Minarsky. During the investigation, Yadlosky admitted that Minarsky’s allegations were true, and he was subsequently fired.
In October 2016, the County filed a motion for summary judgment primarily based on its alleged Faragher-Ellerth affirmative defense, which derives from two decisions issued by the Supreme Court in 1998, in opposition to Minarsky’s claim that the County was vicariously liable for the hostile environment created by Yadlosky. To prevail on that defense, an employer must show that: (1) it exercised reasonable care to avoid harassment and to eliminate it when it might occur; and (2) the plaintiff failed to act with reasonable care to take advantage of the employer’s safeguards and otherwise prevent harm that could have been avoided.
The County’s alleged “safeguards” were set forth in its General Harassment Policy. The policy stated that employees could report any harassment to their supervisors, and that if a supervisor was the source of the harassment, an employee could report the conduct to the Chief County Clerk or a County Commissioner.
By a decision dated June 28, 2017, the District Court granted the County’s motion for summary judgment. On appeal, Minarsky contested only the District Court’s dismissal of her claim of sexual harassment based on a hostile work environment.
The Third Circuit reversed the District Court’s decision finding that the County failed to meet its burden with respect to the second element of the Faragher-Ellerth defense because “Minarsky asserts several countervailing forces that prevented her from reporting Yadlosky’s conduct to [the Chief Clerk] or a County Commissioner: her fear of Yadlosky’s hostility on a day-to-day basis and retaliation by having her fired; her worry of being terminated by the Chief Clerk; and the futility of reporting, since others knew of his conduct, yet it continued. All of these factors were aggravated by the pressing financial situation she faced with her daughter’s cancer treatment.”
In reaching its decision, the Third Circuit recognized the impact of the #MeToo Movement; specifically, the fears of retaliation of which victims have spoken. The Court said:
This appeal comes to us in the midst of national news regarding a veritable firestorm of allegations of rampant sexual misconduct that has been closeted for years, not reported by the victims. It has come to light, years later, that people in positions of power and celebrity have exploited their authority to make unwanted sexual advances. In many such instances, the harasser wielded control over the harassed individual’s employment or work environment. In nearly all of the instances, the victims asserted a plausible fear of serious adverse consequences had they spoken up at the time that the conduct occurred.
A trial of Minarsky’s claim will be scheduled, and its merits will be decided by a jury.