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In a decision that tackles several important issues in sexual harassment law relating to the interrelationship between sex discrimination claims and retaliation claims, the 3rd U.S. Circuit Court of Appeals has ruled that plaintiffs may sue under a theory of “retaliatory harassment,” and therefore need not show the alleged retaliation they suffered had resulted in a firing or demotion. In its 16-page opinion in Jensen v. Potter, the court also refused to draw a bright line between conduct that is sexually discriminatory and conduct that is retaliatory, finding instead that most such questions hinge on the facts of the case and should therefore be decided first by a jury. The unanimous three-judge panel reversed a decision by U.S. District Judge Richard P. Conaboy of the Middle District of Pennsylvania that dismissed a postal worker’s Title VII discrimination and retaliation claims. Judge Samuel A. Alito Jr. wrote the opinion for the court which was handed down on his final day as a 3rd Circuit judge, just an hour before he was sworn in as a justice of the U.S. Supreme Court. Ironically, Alito’s opinion in Jensen could have served as one of the best answers to some of his harshest critics in the Senate who argued that his tenure on the bench showed a hostility to employment discrimination claims. But Alito may have delayed the release of the opinion until his final day on the 3rd Circuit if only to avoid the appearance that his ruling in the case was designed to silence critics who said he had rarely if ever written opinions that favored plaintiffs in such cases. For plaintiffs lawyers, the ruling is a significant win because it makes it harder for defendants to win summary judgment in cases involving allegations of sexual harassment followed by a pattern of alleged retaliation by co-workers after the plaintiff lodged a complaint. Alito, in an opinion joined by Judge Thomas L. Ambro and visiting Judge Jane A. Restani, the chief judge of the U.S. Court of International Trade, held that “retaliatory harassment” is a valid theory, and that the alleged retaliatory conduct may also qualify as evidence in a companion claim of sex discrimination if the plaintiff can show she was being targeted “because of” her sex. “As an abstract matter,” Alito said, “retaliation against a person based on the person’s complaint about sexual harassment is not necessarily discrimination based on the person’s sex. If the individuals carrying out the harassment would have carried out a similar campaign regardless of the sex of the person making the complaint, the harassment, while actionable as illegal retaliation, would not also be actionable as discrimination based on sex.” But Alito said juries must decide such questions because the evidence could also cut the other way. “In reality, when a woman who complains about sexual harassment is thereafter subjected to harassment based on that complaint, a claim that the harassment constituted sex discrimination (because a man who made such a complaint would not have been subjected to similar harassment) will almost always present a question that must be presented to the trier of fact,” Alito wrote. “In such a situation,” Alito said, “the evidence will almost always be sufficient to give rise to a reasonable inference that the harassment would not have occurred if the person making the complaint were a man.” According to court papers, the suit filed by Anna M. Jensen, a letter carrier in the Kingston, Pa., post office, stemmed from an incident in September 2001 when her supervisor allegedly told her that he had just finished an all-night drinking binge and then propositioned her, saying he wanted to “make love to you all day long.” The suit says Jensen rejected the proposition and reported it to her branch manager the next day. Five days after Jensen complained, her supervisor was transferred, the suit says. And after an investigation of the incident was completed, the supervisor was fired in January 2002. But the suit says Jensen’s workstation was also moved — placing her in the same desk that was previously used by the fired supervisor — and that her co-workers began to harass her for getting their former boss “in trouble.” Jensen claims one co-worker peppered Jensen with insults, the suit says, and discussed circulating a petition demanding that the fired supervisor be given his job back. The same worker also allegedly taunted Jensen by creeping up behind her and clapping two objects together. Another worker allegedly threatened her by driving a cart directly toward her. On two occasions, the suit says, unknown vandals scratched Jensen’s car with a key in the post office parking lot. The suit alleges that the insults and harassment continued for 19 months despite Jensen’s repeated complaints to her supervisors. The harassment ended, the suit says, only after Jensen complained to a new supervisor who took the issue up with the branch manager. The suit alleges that the 19-month harassment campaign took a physical toll on Jensen, causing her to suffer panic attacks, exacerbating her asthma, and forcing her to use up sick time because of work-related stress. Alito found that Jensen’s case presented a “threshold question” of law that has split the federal circuits — whether a retaliation claim may be predicated on a hostile work environment theory. Nearly every other federal circuit has weighed in on the issue, with eight of the appellate courts holding that such “retaliatory harassment” claims are cognizable, and only two — the 5th and 8th circuits — holding they are not because retaliation claims require proof of some form of “ultimate employment decisions.” Alito followed the strong trend in favor of recognizing such claims, and said “the statutory basis for these claims is the notion that discriminatory ridicule or abuse can so infect a workplace that it alters the terms or conditions of the plaintiff’s employment.” Harassment — whether sexual or retaliatory — is cognizable, Alito said, if the plaintiff is able to show that it was “severe or pervasive enough to create a hostile work environment.” When analyzing whether a harassment plaintiff has mustered sufficient evidence to survive summary judgment, Alito said, the the court must avoid viewing each alleged instance of harassment in isolation, but instead must focus on the “overall scenario.” In Jensen’s case, Alito said, the lower court was wrong to dismiss the suit because her allegations, when viewed in their totality, “tends to show that these seemingly unrelated incidents were components of an integrated pattern of retaliation.” Alito also found that Jensen had evidence of harassment that “a jury might well find severe or pervasive.” He noted that one co-worker allegedly berated Jensen with insults two to three times per week for 19 months. “The significance of these remarks lies in their pounding regularity,” Alito said. And Jensen also had evidence of “more than just insults,” Alito noted, including claims of physical threats and vandalism. “These incidents’ severity and the insults’ frequency combine to raise a material question of fact as to whether retaliatory harassment ‘permeated’ the workplace and changed the terms or conditions of Jensen’s employment,” Alito wrote. Finally, Alito concluded that Jensen had met the test for establishing employer liability because she is able to show that management knew or should have known about the harassment, but failed to take “prompt and adequate remedial action.” Although the harassment ended after Jensen’s primary harasser was confronted in a meeting, Alito noted that the meeting occurred 19 months after the harassment began. As a result, Alito said, the case raised a question about “why, despite Jensen’s repeated complaints, it took 19 months of harassment and the intervention of a new supervisor to make it happen.” Due to that delay, Alito said, “we cannot deem the Postal Service’s response prompt and adequate as a matter of law.” Jensen was represented in the appeal by attorneys Kimberly D. Borland and David P. Tomaszewski of Borland & Borland in Wilkes-Barre, Pa., and Assistant U.S. Attorney J. Justin Blewitt Jr. argued the appeal for the government.

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