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Wednesday, August 21, 2013

Call to Police Reporting Harassment Protected

Alabama@Work
By Tommy Eden, Attorney
In Scarbrough v. Board of Trustees Fla. A&M Univ., (11th Cir. Oct. 22, 2007) the Court determined that an employee who called campus police when his supervisor allegedly threatened him after he rejected the female supervisor’s advances may have been engaged in protected activity under Title VII of the 1964 Civil Rights Act and were issue for a jury to decide.
Dushun Scarbrough was hired on Aug. 10, 2004 to work for Florida A&M University as an academic advisor for student affairs in the School of Nursing. Shortly after he was hired, he claimed that his female supervisor made inappropriate and unwanted advances toward him. He also claims that he consistently rebuffed those advances. During September 2004 she allegedly made an overt sexual advance toward him during a “mandatory meeting” where she required him to attend at her home. He then immediately left her home. The alleged retribution for his hasty departure consisted of his boss overloading Scarbrough with work responsibilities and verbally accosting him in the workplace.
Scarbrough discussed the incident at his bosses home and the ensuing maltreatment with the dean of the nursing school. He met with the dean on numerous occasions and during the fall semester of 2004, when she represented to Scarbrough that she had spoken with his boss and that her attitude should improve. Scarbrough then interviewed with the Dean for an available student coordinator position in the nursing school and the dean recommended that he be hired for the position.
A short time later, Scarbrough claims that his boss verbally attacked him with abusive and profane language, spat in his face and knocked papers out of his hand. Scarbrough reported this incident to university administration, at which time he was granted permission to take the remainder of the year off (approximately two weeks). Scarbrough believed that his bosses outrageous behavior stemmed from his rejection of her earlier advances. He filed a formal discrimination complaint against his boss and the university with the Florida EEO Agency.
Shortly after filing the complaint, Scarbrough’s tire was slashed. Scarbrough’s neighbor provided a description of the car that drove away from Scarbrough’s home at the time of the incident and that description resembled his boss’ car. Then his boss allegedly confronted Scarbrough in a vulgar manner a second time and threatened him with violence over an office telephone bill.
In response to this alleged behavior, Scarbrough called the university campus police and sought a court injunction against his boss. The next day, the dean withdrew her recommendation that Scarbrough transfer to the student affairs coordinator position and discharged him for “unprofessionalism.” The dean incidentally received a copy of Scarbrough’s formal discrimination complaint the day before she discharged him from the university’s employ. The university maintained that Scarbrough’s involvement of the campus police was “unnecessarily disruptive.” It therefore determined that Scarbrough’s termination was warranted.
The 11th Circuit held that where, as here, involving the police allegedly derived from an effort to protect against actions that are intertwined and interrelated with alleged sexual harassment; it cannot be deemed “unprofessional” conduct for which an employee can be terminated. An employee has a right to police protection irrespective of whether it may cause some disruption in the workplace. Furthermore, Scarbrough’s call to the police may be deemed protected activity under Title VII of the 1964 Civil Rights Act if he was threatened and physically accosted for rejecting his bosses’ sexual advances. If involving the police is protected activity, then Scarbrough’s discharge was retaliatory and therefore unlawful. The 11th Circuit Panel vacated the District Court’s summary judgment and found that all of the issues were left for a jury to decide.
Common Sense Counsel: The broad range of behavior that may be deemed “protected activity” under the anti-retaliation provision of Title VII of the 1964 Civil Rights Act has widened considerably over the past few years. To the degree conduct (even disruptive conduct) could reasonably be perceived as intertwined and interrelated with alleged harassment, an employer should not use that conduct as the basis for an employee discharge. See the EEOC Website for detailed guidance on the subject of unlawful retaliation http://www.eeoc.gov/laws/types/facts-retal.cfm

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com