North Carolina Lawyers Weekly
Dulaney v. Packaging Corp. of America (Lawyers Weekly No. 12-01-0307, 17 pp.) (Duncan, J.) No. 10-2316, March 12, 2012; USDC at Roanoke Va. (Turk, J.) 4th Cir. Full-text opinion.
Holding: A female production worker at a Roanoke packaging plant who alleges the male employee who supervised her shift sexually harassed her by stalking her, threatening her with disciplinary action if she did not have sex with him and told other employees she was a “whore” and had a sexually transmitted disease, can pursue her Title VII claim, as the 4th Circuit vacates summary judgment for the employer.
The district court determined employer was entitled to the Faragher-Ellerth defense as a matter of law. Although the employer argued it took no adverse employment action against plaintiff but provided her with a severance agreement and letter offering her job back, there is a genuine issue of material fact on this matter.
In Burlington Indus. v. Ellerth, 524 U.S. 742 (1998), the Supreme Court defined a “tangible employment action” as a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision causing a significant change in benefits. We find there is a genuine issue of fact as to whether plaintiff was fired. The district court erred by giving dispositive weight to the language of the severance agreement and a letter from a representative of employer’s HR department without considering the contradictory evidence in the record. We also conclude the district court did not properly draw inferences in favor of plaintiff as the non-moving party.
Plaintiff and her attorney read the agreement as an offer of severance benefits in exchange for a waiver of certain rights, such as the right to file suit in any jurisdiction except Illinois; the alternative to this offer, as they read it, was termination. We do not find such an interpretation so unreasonable that it warrants rejection as a matter of law. Although the letter stated plaintiff could return to work, she testified that the HR rep told her she would be fired if she did not sign the severance agreement. When she refused to sign, her direct supervisor walked her to her locker, directed her to gather her lock and other belongings, took her key to the facility, then escorted her off the premises. According to a company internal memo, the company stopped plaintiff’s payroll three days before she first saw the severance agreement. It would not be unreasonable for a jury to conclude that plaintiff had been terminated regardless of whether or not she signed the agreement.
We hold that summary judgment is inappropriate for this case because there is a genuine issue of fact as to whether employer took a tangible employment action against plaintiff.
Relying on Brown v. Perry, 184 F.3d 388 (4th Cir. 1999), employer argues that even if it took tangible employment action against plaintiff by firing her, it is entitled to the defense under Ellerth and Faragher v. Boca Raton, 524 U.S. 775 (1998), because plaintiff’s employment did not end at the hands of her alleged harasser. Employer overreads Brown. Brown did not depart from the relevant inquiry in this circuit, which requires us to look at the entire course of conduct between the harassment and the tangible employment action. That someone other than the harasser takes the tangible employment action does not change its but-for case: discrimination in violation of Title VII.
We read Brown as requiring some nexus between the harassment and the tangible employment action for the latter to be actionable. We find sufficient uncertainty in the facts about whether there is a nexus between the harassment and plaintiff’s alleged termination to find summary judgment inappropriate.
Vacated and remanded.
