11/9/07 12:59 PM
11th Circuit: Man’s Call to Police Reporting Harassment Protected
By Farah Mollo
An employee who called campus police when his supervisor allegedly threatened him after he rejected the supervisor’s advances may have been engaged in protected activity under Title VII of the 1964 Civil Rights Act, according to the
11th U.S. Circuit Court of Appeals
Dushun Scarbrough worked for Florida A&M University as an academic advisor for student affairs in the School of Nursing. He began his employment with the university on Aug. 10, 2004.
Scarbrough claims that, shortly after he was hired, his supervisor, Kimberly Davis, made inappropriate and unwanted advances toward him. He also claims that he consistently rebuffed those advances. During September 2004, for example, Davis allegedly made an overt sexual advance toward Scarbrough during a “mandatory meeting” she required him to attend at her home. Scarbrough immediately left Davis’ home, and the alleged retribution for his hasty departure consisted of Davis overloading Scarbrough with work responsibilities and verbally accosting him in the workplace.
Scarbrough discussed the incident at Davis’ home and the ensuing maltreatment with officers at the university including Cornelia Porter, the dean of the nursing school. He met with them on numerous occasions and even met with Porter eight to 10 times during the fall semester of 2004. Porter represented to Scarbrough that she had spoken with Davis and that Davis’ attitude should improve.
On Dec. 13, 2004, Scarbrough interviewed with Porter for an available student coordinator position in the nursing school. Porter recommended that he be hired for the position.
On Dec. 22, 2004, Scarbrough claims that Davis 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 Davis’ outrageous behavior on Dec. 22 stemmed from his rejection of her earlier advances. He filed a formal discrimination complaint against Davis and the university on Jan. 5, 2005.
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 Davis’ car. Then, on Jan. 10, 2005, Davis allegedly confronted Scarbrough in a vulgar manner a second time and threatened him with violence, ostensibly over an office telephone bill.
In response to this alleged behavior, Scarbrough called the university campus police and sought a court injunction against Davis. The next day, Porter withdrew her recommendation that Scarbrough transfer to the student affairs coordinator position and discharged him for “unprofessionalism.” Porter 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 Davis’ sexual advances. If involving the police is protected activity, then Scarbrough’s discharge was retaliatory and therefore unlawful. All these issues were left for a jury to decide.
Scarbrough v. Board of Trs. Fla. A&M Univ
., 11th Cir., No. 07-10195 (Oct. 22, 2007).
Professional Pointer: The 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 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.
Farah Mollo is an attorney with the firm of
Collazo Carling & Mish LLP
, an affiliate of
in New York.
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Editor’s Note: This article should not be construed as legal advice.