For EEO officer to tell director of anonymous complaints about him was not protected ‘opposition’

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By Joy Waltemath

By Joy P. Waltemath, J.D.

When an EEO Officer for the Philadelphia Housing Authority communicated to its executive director that she had received anonymous phone calls reporting he had sexually harassed a female employee, without more, she was not opposing sex discrimination and her activity was not protected. Thus, her retaliation claim failed, a federal district court in Pennsylvania ruled. Additionally, the discrimination charges she had filed alleging race discrimination and retaliation did not exhaust administrative remedies concerning her later sex discrimination and hostile work environment claims, which were dismissed, as were her claims of racial discrimination relating to the PHA’s failure to hire her back into the EEO Officer position after it transferred her, left the position unfilled for several years, and then filled it again. Although she presented a prima facie case of racial discrimination, she was unable to demonstrate that PHA’s facially legitimate reasons for its hiring decision—that the position required a graduate degree, which she did not possess—were pretextual (Grdinich v. Philadelphia Housing Authority, May 17, 2017, Pappert, G.).

Protected activity. The EEO Officer for the Philadelphia Housing Authority advised the agency executive director that she had received anonymous phone calls reporting that he had harassed a female employee. She took no other action and an investigation was never opened. Several months later, the EEO Officer was transferred and her job duties changed substantially. She was advised that her salary would not be affected and that the agency needed her expertise elsewhere; the EEO officer position was left unfilled, and her supervisor took on her responsibilities.

New assignmentsretaliatory? At her new assignment in the PHA police department, she reported to an individual whom she had previously investigated and interviewed in her capacity as EEO Officer. The next year, her salary was cut by approximately $20,000. For several years, she was shifted between different departments; she contended that she was given a needless isolated workspace and placed in these roles with little to no training. After the EEO Officer was transferred, an African-American supervisor berated her and accused her of receiving a ticket while driving an agency vehicle. Another supervisor questioned her for arriving two minutes late to work and assigned her to work the front desk on the busiest day of the week.

Three years later, the EEO Officer position was reestablished and an outside agency was tasked with approving the hire. The job description required a bachelor’s degree, and the employee applied although she lacked that degree. During its search, the agency appointed an interim EEO Officer who was an African-American woman without a bachelor’s degree but with 11 years’ relevant experience. The outside firm interviewed 18 candidates—including the employee—before ultimately hiring an African-American woman who held a bachelor’s degree and was otherwise qualified for the position.

EEOC charges. When she did not get the job, the employee, who is white, filed an administrative charge with the PHRC and the EEOC alleging retaliation and race discrimination, and she later filed another charge claiming she had been harassed in retaliation for making the first complaint. After the EEOC issued a right-to-sue letter, she filed a lawsuit alleging sex discrimination, race discrimination, retaliation, and a hostile work environment. Seeking summary judgment, PHA asserted that she failed to exhaust administrative remedies for her sex discrimination and hostile work environment claims and that her remaining claims failed substantively.

Exhaustion of remedies. Granting PHA’s summary judgment motion on failure to exhaust, the court found that although the employee had filed administrative charges alleging retaliation and race discrimination, she never filed the necessary administrative charges concerning her sex discrimination and hostile work environment claims. Administrative charges alleging race discrimination could not, on the facts she had alleged in those charges, reasonably be expected “to morph into” sex discrimination claims, reasoned the court.

Retaliation claim. Opposing sexual harassment is a protected activity, the court agreed, but here the employee indicated only that when her executive director asked her what she was working on, she told him she had “just received three anonymous calls regarding him” saying that he had harassed a female employee. There was no evidence that the employee made even an informal protest regarding the executive director’s behavior or did anything more than tell him about the calls. Nor was there evidence to suggest that she expressed a belief that he had engaged in discrimination. This was not opposition to sexual harassment and was not protected activity.

But even if the employee had shown that she engaged in protected activity, she did not make out a prima face case for retaliation. Given the nearly three years between her conversation with the executive director and the alleged retaliatory denial of the resurrected EEO Officer job, plus the lack of specifics in the record regarding the timing of the other asserted incidents, no reasonable juror could conclude the employee had shown that PHA engaged in a pattern of antagonism directed at her. And her claim that she was retaliated against for filing the EEOC charge was dismissed because she failed to present evidence of any adverse action occurring following that filing.

Racial discrimination claim. The court was also unimpressed with the employee’s racial discrimination claim. Although she presented a prima facie case of discrimination—she belonged to a protected class based on her race and applied for a position for which she was arguably qualified, and was rejected in favor of someone from outside of that protected class—there was ample evidence that PHA had a legitimate nondiscriminatory reason for hiring the other candidate. That candidate had a college degree, as required in the job description, and there was no evidence that this stated reason for hiring the other candidate was pretextual. Even if her testimony showed some animus on the part of others who were not involved in the hiring of the EEO Officer position, she had no evidence calling into question the legitimacy of PHA’s stated reasons for hiring the other candidate.

Source:: For EEO officer to tell director of anonymous complaints about him was not protected ‘opposition’


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