by Brittany E. Medio, JD, Saul Ewing LLP
The U.S. 3rd Circuit Court of Appeals—which covers Delaware, New Jersey, and Pennsylvania—recently affirmed a lower court’s decision to dismiss an employee’s gender discrimination and retaliation claims against her former employer. The court found the employee was terminated not for engaging in protected activity but for violating the employer’s sick leave policy by attending the taping of a live show.
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Background
“Sabrina” worked for Southeastern Pennsylvania Transportation Authority (SEPTA) from 1994 until she was terminated in 2012 for traveling to New York to see a taping of Live with Kelly & Michael while she was on sick leave. SEPTA’s sick leave policy requires employees to stay at home when they’re using sick leave unless they’re seeking medical treatment.
After her termination, Sabrina sued SEPTA, alleging she was fired on the basis of her gender and in retaliation for engaging in protected activity under Title VII of the Civil Rights Act of 1964. She also claimed she was subjected to pervasive sexual harassment that created a hostile work environment.
To bring suit under Title VII in Pennsylvania, an employee must first file a complaint with the Equal Employment Opportunity Commission (EEOC) within 300 days of the alleged unlawful employment practice. Sabrina filed an EEOC charge on July 13, 2013, claiming that SEPTA unlawfully terminated her on December 20, 2012.
There was no dispute that her termination fell within the 300-day statute of limitations; however, the trial court determined that a majority of the acts she cited as sexual harassment were time-barred. Sabrina appealed.
Court’s analysis
The 3rd Circuit stated that the factual evidence relating to Sabrina’s employment comprised three distinct time periods. The first period occurred between 2004 and 2009, when she alleged that her SEPTA supervisors and coworkers sexually harassed her. The second period, from 2009 through August 2012, was devoid of any evidence of sexual harassment. The third period extended through Sabrina’s termination in December 2012. She alleged that during this period, her supervisor stalked her on Facebook and told her that he would like to “pet” a flower on her blouse.
Sabrina argued that collectively, the record showed a continuous pattern of harassing comments and acts by her coworkers and supervisors and a persistent institutional failure by SEPTA to respond to any of her complaints. However, the court noted that she offered no authority for her theory that a failure to remedy harassment is itself evidence of a continuous pattern of unlawful conduct.
Given the gap in evidence, there was no continuous pattern of unlawful harassment. As a result, the court couldn’t consider evidence of harassment that occurred before 2009 because it was well beyond 300 days from the date of filing. Her hostile work environment claim was therefore limited to the two comments made in 2012.
To establish a hostile work environment claim, Sabrina had the prima facie (minimally sufficient) burden of showing that (1) she was subjected to intentional harassment based on her sex, (2) the harassment was severe or pervasive, (3) the harassment detrimentally affected her, (4) the harassment would detrimentally affect a reasonable person in similar circumstances, and (5) her employer was aware of the harassment.
The 3rd Circuit affirmed the lower court’s decision that the supervisor’s alleged stalking of Sabrina on Facebook and comment about “petting” a flower on her blouse, although offensive, didn’t occur frequently enough or rise to the level of a physical threat necessary to establish a prima facie hostile work environment claim.
With respect to her gender discrimination claim, Sabrina recognized that she was terminated for violating SEPTA’s sick leave policy, but she argued that SEPTA inappropriately used her gender against her in making its termination decision. The court disagreed, stating there was no evidence that the decision makers relied on any facts other than her sick leave infraction when they made the decision to terminate her.
Finally, Sabrina argued that her termination violated Title VII because she was fired in retaliation for her complaints about sexual harassment. However, she was unable to provide any evidence that her claims of harassment were causally connected to her termination. Her 2009 report to SEPTA’s equal employment opportunity office and her termination occurred approximately 4 years apart, and although her second harassment report was much closer in time to her termination, the supervisor she complained about wasn’t involved in the decision to terminate her.
Bottom line
Employees will not be able to establish that they were subjected to a continuous pattern of unlawful conduct if there are distinct periods when no harassment occurred. Courts cannot consider evidence of harassment or other unlawful conduct if it occurred outside the 300-day statute of limitations for filing a Title VII claim. Moreover, an employee’s clear violation of a company policy will usually trump claims of discrimination or harassment.
Brittany E. Medio, an editor of Pennsylvania Employment Law Letter, can be reached at bmedio@saul.com or 215-972-7548.