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8th Circuit: Firm Response to Harassment Claim Did Not Excuse Weak Follow-Up

By Maria Greco Danaher   11/30/2007
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Although an employer’s response to an employee’s initial claim of sexual harassment was appropriate, its response to a subsequent similar complaint from the same individual was ineffective, according to the 8th U.S. Circuit Court of Appeals , which refused to dismiss a harassment claim before trial.

DeDe Engle, an employee of the Rapid City School District in South Dakota, claimed that she experienced a hostile work environment created by sexual advances and comments made to her by David Herrera, a nonsupervisory co-worker. After the district investigated Engle’s initial complaint, Herrera was suspended without pay and was directed to undergo counseling. In addition, his workplace activities were monitored and he was warned that “if there is an additional complaint, your employment with the district will be terminated.”

After Herrera returned from the suspension, he attempted to talk to Engle and once spoke to her over the school’s intercom system. Engle complained to her supervisor that Herrera “leered” at her and continued to “look her up and down.” Herrera again was suspended and received another written warning, but, despite the district’s prior warning, was not fired. The threat of definite termination was not included in the second disciplinary letter, which stated only that future complaints about Herrera’s conduct would “result in additional administrative action, up to and including termination of your employment.” In addition, certain sanctions imposed in the initial discipline—including ongoing counseling—were eliminated in the subsequent warning.

Engle then filed suit against the district. The lower court granted summary judgment in favor of the district, holding that Engle had failed to present sufficient evidence that the disciplinary action imposed against Herrera had been inadequate or ineffective.

The 8th Circuit reversed. It found that while the district’s initial remedial action eliminated the offending conduct for a short period, the adequate initial response did not discharge the district’s responsibility to respond properly to subsequent reports of offensive conduct. One issue labeled as “significant” by the court is the fact that the district decided to respond to the continued harassment by decreasing, rather than increasing, the threatened sanctions against Herrera. Such backtracking might have “emboldened” Herrera and contributed to Engle’s continued harassment.

Engle v. Rapid City School District, 8th Cir., No. 06-3936 (Nov. 9, 2007).

Professional Pointer: While this case may be read to indicate that discipline should be progressively more strict for subsequent complaints against the same harasser, it also could be read as a warning to employers to ensure that initial discipline is appropriate and does not include “empty threats” of termination or other discipline, unless the specific intent is to implement that discipline in the event of further violations.

Maria Greco Danaher is an attorney with the firm of Dickie, McCamey & Chilcote in Pittsburgh.

Editor’s Note: This article should not be construed as legal advice.

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