Let Me Tell You What I Just Heard…

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By: Claudia D. Orr, Attorney, Plunkett Cooney 

 

Let Me Tell You What I Just Heard…

Can a rumor form the basis of a sexual harassment claim? That was the issue that everyone seemed excited about in Parker v Reema Consulting Services, a new opinion out of the United States Court of Appeals, Fourth Circuit.

While not binding on us (since we are located in the Sixth Circuit), it drew a lot of attention with amicus curiae briefs by the EEOC, the National Women’s Law Center, AFSCME, AFL-CIO, National Organization for Women Foundation, and over forty other groups. Amicus curiae briefs are filed by non-parties who have a strong interest in the subject matter and outcome and who wish to inform the court on how issues should be decided. So what caused the entire brew ha? Let’s look at the case.

Evangeline Parker worked for Reema Consulting Services, Inc. (RCS) beginning in December 2014 until May 2016. During her short, 18 month tenure, Parker went from a low-level clerk position to Assistant Operations Manager of the facility. She received six promotions, averaging one every three months! Quite the all-star, right? Or was it something else?

Well, as you might expect, a rumor was started by another RCS employee, Donte Jennings (who was hired at the same time and in the same position as Parker). He began telling other employees that Parker was having a sexual relationship with Demarcus Pickett (a high ranking manager) in order to get promoted. As fate would have it, Parker’s promotions made her Jennings boss. Kismet.

The highest-ranking manager at that warehouse facility was Larry Moppins. He helped spread the rumor by asking Pickett, “hey, you sure your wife ain’t divorcing you because you’re f—ing [Parker]”? As the rumor continued to spread, partly with the help of Moppins, employees, including those who worked for Parker, began to resent and disrespect her.

In late April 2016 (the month before she was fired), a mandatory meeting was called to discuss the rumors.  Parker and Pickett both arrived a few minutes late, together. Moppins let Pickett in, but, in front of all of her coworkers, he slammed the door in Parker’s face and locked the door.

The next day Parker arranged to meet with Moppins to discuss the rumor. Moppins blamed Parker for “bringing the situation to the workplace” and that while he had “great things” planned for her, “he could no longer recommend [Parker] for promotions” because of the rumor. He would not “allow her to advance any further within the company.” [Query, how much higher could she have gone at a warehouse after six promotions?] A few days later Moppins told Parker that he should have fired her when she started “huffing and puffing about this BS rumor” and he began screaming at Parker in anger.

Parker filed a sexual harassment complaint with RCS’s Human Resources Manger against Moppins and Jennings. Not long after that, Jennings (who started the rumor) filed a hostile work environment complaint with the Human Resources Manager against Parker. While Parker was told to have no contact with Jennings, he would go into Parker’s area and chat with her subordinates and laugh, stare and smirk at her. Parker complained about this to the Human Resources Manager, who promptly resigned. Just kidding, but what a mess she had with dueling harassment complaints, right? Let me suggest that this might have been a good time to have an employment attorney investigate the complaints.

On May 18, 2016, Parker was called into a meeting with Moppins, the Human Resources Manager, and RCS’s in-house counsel. She was issued a written warning based on Jennings’ complaint and another one for being insubordinate to Moppins and for having poor management abilities. Parker was then fired. It made me wonder why she would have received six promotions in eighteen months if, in fact, she had such poor management skills. Something certainly was amiss with this whole scenario.

Parker filed a three count complaint in federal district court alleging a hostile work environment based on sex under Title VII, retaliatory discharge for having exercised her rights under Title VII and discrimination based on sex since she was fired without having first received three warnings as required under RCS’s policies.

The federal district court dismissed the complaint, stating in part: “Clearly, this woman is entitled to the dignity of her merit-based promotion and not to have it sullied by somebody suggesting that it was because she had sexual relations with a supervisor who promoted her. But that is not a harassment based upon gender. It’s based upon false allegations of conduct by her.”

The court determined that the harassment was neither severe nor pervasive. And, since the harassment was not based on her sex, her belief that she complained about a violation of Title VII was not objectively reasonable. Thus, the retaliation claim failed as well. Finally, the discrimination claim was dismissed because, as to this claim, Parker had failed to exhaust her administrative remedies at the EEOC since it was not mentioned in the charge.

On appeal, RCS argued that the rumor was started by a coworker because he was jealous of Parker’s success, not because she is a woman. Therefore, the rumor was based on conduct, not sex. The appellate court was not buying this for one minute, stating:

[The rumor implied] that Parker used her womanhood, rather than merit, to obtain from a man, so seduced, a promotion. She plausibly invokes a deeply rooted perception – one that unfortunately still persists – that generally women, not men, use sex to achieve success. And with this double standard, women, but not men, are susceptible to being labelled as ‘sluts’ or worse, prostitutes selling their bodies for gain.

***

… [T]raditional negative stereotypes regarding the relationship between the advancement of women in the workplace and their sexual behavior stubbornly persist in our society…

Thus, the appellate court found the “conduct” alleged in this case to be gender-based.

The court also highlighted how only Parker was banned from the all-staff meeting when both she and Pickett were both late. Also, only Parker was ordered to stay away from Jennings when he complained, but he was allowed to enter Parker’s workspace and jeer and mock her. Finally, only Parker, the female member of the alleged sexual relationship, was disciplined while Pickett, the alleged male participant, was not.

Thus, the appellate court reinstated the hostile work environment claim. Because Parker’s complaint alleged a plausible hostile work environment, the retaliation claim was also reinstated. However, the dismissal of the discrimination claim was affirmed because it was not raised in the EEOC charge. The dissenting judge would have also reinstated this claim.

So, now you understand why there were nearly fifty amicus briefs filed in this case. Parker’s harassment was severe or pervasive and it had consequences. She did not simply endure a “few slights” as characterized by the lower court. Parker was fired. A jealous male co-worker started the rumor that Parker was “sleeping her way to the top” and it was perpetuated by other males, including Moppins, the highest ranking male in the facility. Parker had a door slammed in her face and was screamed at by Moppins. This rumor was humiliating, going “right to the core of somebody’s merit as a human being…”

I wonder if the Human Resources Manager was inexperienced, blind to the facts, or powerless to take the right action. Often it is the latter. Having a trusted relationship with an experienced employment attorney can often make the difference. An outside attorney can weigh in and support the advice being given by Human Resources and prevent an injustice such as the one that may have occurred here.

This article was written by Claudia D. Orr, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM) and an arbitrator with the American Arbitration Association. She can be reached at corr@plunkettcooney.com or at (313) 983-4863. For further information go to: http://www.plunkettcooney.com/people-105.html

 Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. April 2019.