My conversation with the lawyer who, IMHO, just earned the biggest employment law win of 2018.

3D Judges Gavel

By Chris Potter (Flickr: 3D Judges Gavel) [CC BY 2.0 ], via Wikimedia Commons

Yesterday, I blogged here about the most important employment law decision of 2018. It’s a case called Minarsky v. Susquehanna County (opinion here).

If you missed my post, well, it was long. 1,888 words long. So, here’s the super-condensed version: The Third Circuit Court of Appeals concluded that a plaintiff might not complain about sexual harassment at work for several years but still have a viable hostile work environment claim if she genuinely believed — and the record supported — that it would be pointless to do so.

The Third Circuit’s opinion is not only remarkable for the holes it poked in an employer’s potential Faragher/Ellerth defense, but also for addressing the #MeToo movement and the chilling effect that misbehaving men in power can have on a victim complaining about harassment.

Employee-rights attorneys should be cheering this outcome. But, none should be happier than my friend, Dave Koller of Koller Law, LLC, who represents Ms. Minarksy.

Lucky for me (and you), Dave and I have been swapping emails about the case, and he’s cool with me publishing our conversation.

So here you go…

Eric Meyer: Dave, congratulations! I saw on Facebook that you described this victory as a “grand slam.” Obviously, this is a big win for you and your client. But, in the bigger picture, how much of a game changer is this for victims of a hostile work harassment? Do most of these cases become summary judgment proof now?

Dave Koller: Thanks, Eric. I think it is a great step in the right direction that goes beyond Sheri Minarsky’s case. In her particular case, the home run was scored – that issues related to the two prongs of the affirmative defense were absolutely questions of fact appropriate for a jury. That was very obvious to me. The ruling does not go so far to say that in every case the issues are always questions of fact for the jury, however. But that’s right too. It’s a grand slam because, besides the ruling, with the passionate and thoughtful language authored by Judge Rendell, it hopefully will (a) empower victims who did not complain to understand they might have a case, and (b) cause employers to not hide behind anti-harassment policies that sound good on paper but in real life are ineffective.

EM: Dave, you’re right about not every case going to the jury. For starters, the plaintiff is going to have to establish his or her threshold case: (1) intentional discrimination because of [protected class]; (2) that is severe or pervasive; (3) that detrimentally affects the plaintiff; and (4) that a reasonable person under similar circumstances would find offensive too. Ms. Minarsky’s employer conceded these elements for summary judgment.

The court emphasized that Ms. Minarsky endured several years of regular harassment in a secluded portion of the building by a supervisor who was doing similar stuff to other people, including his bosses. It seemed like his reputation preceded him, yet he remained employed until word of Ms. Minarsky’s complaint about him got out. And, sadly, Ms. Minarsky needed this job. Among other things, her daughter had cancer.

Indeed, the facts here are extreme, and most employers in other cases will contest the underlying hostile work environment claim. But in this case, the Court was so shaken that – geez, I’ve never read anything like footnote 12 before. Judge Rendell essentially recapped the origins of the #MeToo movement and connected it to employee fear of complaining about harassment work because of possible retaliation.

How surprised were you to read Footnote 12? And will you be citing it in every brief you write from now until the end of time opposing an employer’s motion for summary judgment on a claim of hostile work environment?

DK: I was not very surprised at all, actually. I had oral argument before this panel in April and I left thinking to myself two things – (1) I think I won this one and (2) Judge Rendell was on my side. She asked really great questions to me and the County’s lawyer during oral argument. The #MeToo movement was referenced. I tried to argue all those points during the few minutes you get to make a presentation before the Third Circuit. Moreso than surprised, I was really happy. And relieved. Footnote 12 recognized the psychology of a victim of sexual harassment that I think needed to be recognized based on how the Faragher-Ellerth defense has been used recently. I am not sure I am going to cite it in every brief I write, but I can’t wait for the next time a defense lawyer calls me up to discuss a case, asks me what type of case is it, I tell counsel it is a sexual harassment case, and counsel asks did your client make a report, I say no, and counsel tells me there is no case. The point is to forget about that type of cursory analysis. We have to dig deeper and get into the reasons why the reporting did not occur. I will reference the case on those occasions when defense counsel calls me and boldly tells me its no case because there was no report.

EM: Along those lines, the Faragher/Ellerth affirmative defense requires an employer to establish two elements:  (1) it exercised reasonable care to prevent and promptly correct any sexually harassing behavior; and (2) the plaintiff employee unreasonably failed to take advantage those corrective opportunities.

I found it curious that when the court referenced the employer’s anti-harassment policy, it focused on language in the policy about how an employer “may” (as opposed to “must”) report harassment by a supervisor to other managerial-level employees.

So, how about this half-baked idea: what if I have a policy that requires employee-victims of discrimination by supervisors to report it to another managerial-level employee (prong one) within one business day (prong two)?

If I’m the defense lawyer calling you to tout this policy, offer facts to support that your client didn’t comply to the letter, and confirm that once my client learned about the harassment, it investigated and fired the harasser, would your confidence level change?

DK: It’s not that simple.  The language Judge Rendell wrote near or around the footnote specifically stated that the Third Circuit is clarifying that an employee’s failure to report or utilize the anti-harassment policy is not per se unreasonable.  There also is a sentence in the Opinion that says it might even be reasonable, in certain cases.  There also is language in the wonderful Opinion that says how much of a fact-intensive inquiry it is, and it really is not a thousand mile away quick cursory review.  So your example could result in a decision by the judge that the failure to report was unreasonable, but I want to know more about the harasser and the employer’s track record in dealing with him.  If he was like Minarsky’s harasser, then I am not convinced.  I also have a major problem with a one-day requirement for reporting in a company’s policy.  I understand the business desire for that but ignores the issue that created this mess in the first place – the victim’s mental state.  That’s why this Opinion is so wonderful – it takes that into account, as it should.

EM: I hear you, Dave. My half-baked policy would also lead to hecka-retaliation claims – no legalese spoken here – if a company enforces it’s one-day, mandatory-reporting rule by disciplining victims who complain ‘late’ or fail to complain altogether.

Plus, here’s the money shot from Judge Rendell’s opinion on employee policies:

Was the policy in place effective? Knowing of his behavior, and knowing that Minarsky worked alone with Yadlosky every Friday, should someone have ensured that she was not being victimized? Was his termination not so much a reflection of the policy’s effectiveness, but rather, did it evidence the County’s exasperation, much like the straw that broke the camel’s back?

So, even with a written policy, when an employer fails to enforce it, it’s little better than having no policy at all.

In the big picture, I have a few takeaways and a few closing questions for you:

  1. Minarsky’s case involves an extreme set of facts. Nonetheless, Judge Rendell’s opinion will offer a strong foothold for plaintiffs in subsequent Faragher/Ellerth cases to get to a jury.
  2. Anecdotally, even before this decision, plaintiffs’ counsel seem more aggressive pre-litigation given the specter of bad press for an employer from a #MeToo story. Now, after Minarsky, employers are staring at more defense costs and bigger overall exposure from the increased risk of a jury trial. Plus, although this is a sexual harassment case, presumably, its reasoning may apply to any hostile work environment based on any protected class.
  3. I’ve been doing a lot more employer training this year, trying to reshape workplace culture by emphasizing buy-in from leadership, accountability, and other best practices from the 2016 EEOC Task Force Report.

Dave, recognizing that no amount of training and change will lift every knuckledragger’s knuckles off of the ground, if litigation does arise, what advice do you have for defendant-employers?

In light of Minarsky, can you describe for me a set of Faragher/Ellerth facts in which an employer gets summary judgment on its affirmative defense?

The EEOC has indicated that #MeToo has not yet translated into an uptick in case volume. Is that your experience? Could Minarsky Do you see more this translating into high cases volume? Bigger settlements? More settlements? Earlier settlements? All of the above?

DK: On point one, it’s interesting to me that a lot of people now (mostly defense lawyers) are referring to this case as having an “extreme set of facts.”  I’m wondering if that is to set themselves up for the arguments down the road to try to differentiate these “extreme set of facts” which now form the basis of a precedential third circuit opinion from future cases they need to defend now that this great opinion has been issued?  Because the reality is before this Opinion was issued, nobody (save Sheri Minarsky and my law firm, frankly) thought this was an extreme set of facts.  Certainly not two judges in Harrisburg.  I would venture to say certainly not many defense lawyers.  And I would venture even further to say, because she was a part-time secretary who never complained and the harasser was terminated, perhaps even other employee rights lawyers, as the case does not, on first glance, appear to be an easy one or one that has high economic damages.  It’s amazing how a third circuit Opinion affects the way facts are viewed.  The facts didn’t change just because the Third Circuit issued this opinion!

On point 2, I agree this case can be useful anywhere the affirmative defenses are argued, even beyond sexual harassment cases.

On point 3, keep it up!

My advice for defendant employers is to please give some thought to the difficult place a victim gets put in and the psychology behind it, to the extent you have not done so before.  It’s real.

As far as whether I can describe a set of facts where an employer gets summary judgment, my response is – Eric – no!!!!!  Not right off the bat, at least.  Requires a very fact-specific inquiry so cases like Ms. Minarsky can no longer be rejected after a cursory review.  I hope I get no more calls from defense lawyers – “hey Dave she didn’t complain and we fired him so she has no case.”  Dig deeper!

On your last series of questions- It’s difficult to predict the future but I really hope there is an increase in case volume and larger settlements and more settlements and earlier settlements.  Lawyers for Plaintiffs might feel more inclined to listen more and ask for further details rather than form an assessment too soon and most importantly victims might feel more empowered to come forward and make that difficult first call to a lawyer.

Here are my final thoughts, in all candor:

  1. I feel strongly that the extreme set of facts you referred to would not have been extreme enough four years ago for most lawyers to take this kind of case.  I also feel they would not be extreme enough four years ago for an employer and employer counsel to value it appropriately and settle the case early.  I hope that changes for everyone’s sake all across our profession, and hopefully this case furthers the ball in that regard.
  2. I hope this case empowers more lawyers to take cases based on principle.  Fighting for what is right.  Recognizing that you can break down a defense.  Not just making decisions based on the billable hour or prospect of a large contingency fee.  As lawyers, it is our obligation to work on cases not just for financial gain but on principle, to think creatively and flexibly with the bravery that we witness in our clients.  It is our job as lawyers to not only interpret the law but to contribute to the process of changing outdated laws so as to make them more consistent with real life and current times.  All of us – civil or criminal lawyers, private or public, need to think of ourselves as activists.
  3. Being an employment lawyer on the side of plaintiffs can be frustrating and demoralizing at times, to be quite honest.  I am constantly facing uphill battles trying to fight for proper value and assessment of emotional distress damages in employment cases specifically, but really across the board in our profession.  In one of our most recent cases, I helped a woman who was sexually harassed recover a $900,000 settlement in what may be the largest employment discrimination settlement against the Commonwealth of Pennsylvania.  Her damages were based in large part on emotional distress.  It was an uphill battle.   A lot of lawyers do not understand or appropriately value the emotional distress people suffer.   Emotional suffering and damages stemming from emotional distress need to be discussed and appreciated on a broader scale.  Sexual harassment, like other forms of harassment, is emotionally very damaging.  The legal community has a responsibility to understand the impact of violent acts in the workplace on victims.  Emotional and sexually abusive acts can create fear and many other understandable and reasonable and adaptive responses in our clients.  To me at least, the Faragher Ellerth affirmative defense always missed the boat on that, and recent times and #metoo helped shine the needed light.  The law needs to evolve to accommodate the reality of these situations.  Minarsky v Susquehanna County is a great place for all of us to start.
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