Employee May Proceed With Claim, Even Though Some Of The Incidents Of Harassment And Discrimination Are Too Old To Support A Claim On Their Own

Issue

In Porter v. California Department of Corrections (2004 Daily Journal D.A.R. 11,308, 9th Cir. (Cal.), Sept. 10, 2004), the United States Court of Appeals considered the issues of whether an employee showed recent incidents of discrimination and whether older incidents of harassment could be considered in her claim of harassment.

Facts

Employee, Lawana Porter, was employed as a correctional officer by the California Department of Corrections (CDC). Shortly after she started her employment and for several years after, she alleged she was subjected to numerous incidents of harassment and retaliation by two superior officers. Employee filed a complaint with the Equal Employment Opportunity Commission on April 21, 1999, and filed a lawsuit on May 3, 2000. The federal district court granted judgment to CDC, without a trial, determining that Employee’s lawsuit was untimely because she relied on events that occurred before June 26, 1998, more than 300 days before she filed a claim. It also determined she could not prove that CDC’s actions were a pretext for retaliation. Employee appealed to the United States Court of Appeals.

Appellate Court Decision

The Court of Appeals first addressed Employee’s allegations of discrete discrimination by CDC. It agreed that Employee could not sue for discriminatory acts that occurred before June 26, 1998. However, the Court determined Employee had also showed at least one timely act of discrimination – Employee presented evidence that, sometime after June 26, 1998, she was denied a transfer because she declined sexual advances by two superior officers. Moreover, Employee presented evidence that CDC’s non-discriminatory reason for denying the transfer – the need to balance assignments of apprentices – was merely a pretext for retaliation. For instance, Employee presented evidence that another officer found the transfer denial so suspicious that she reported it, on her own, to CDC’s EEO coordinator as an unlawful employment practice. She also presented evidence that one of the allegedly harassing officers deviated from proper procedures in unilaterally canceling Employee’s transfer request.

The Court next turned to Employee’s claim of hostile work environment. The Court noted that the discrete acts that occurred before June 26, 1998, could not alone support her claim. However, Employee also presented ample evidence of non-discrete acts – some occurring before and some after June 26, 1998 – that showed the actions were severe and pervasive, were the same type of employment action, occurred relatively frequently, and were perpetrated by the same superior officers. As such, the actions could be considered one unlawful employment practice. Thus, the Court concluded that Employee had presented evidence that the two harassing officers had created a sexually hostile environment that persisted beyond June 26, 1998.

The Court sent the case back to the trial court for a trial on Employee’s claims of discrimination, hostile work environment, and retaliation.

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