By Erica Shelley Nelson and Sarah Burke
In Jennings v. Wayne County, a Michigan police officer was able to establish a claim for retaliation after she complained about sexual harassment. The district court found that being frozen out of meetings, not receiving backup, and being stripped of her Blackberry could constitute an adverse action. The district court also found the officer had established a First Amendment claim because her complaints about the harassment involved a matter of public concern.
Shontae Jennings began working as a police officer for the Wayne County Sheriff’s Department in October 2007. Starting in February 2010, Jennings began to experience sexual harassment by her supervising sergeant. Jennings began to keep a journal around the incidents she experienced documenting when her sergeant told her she should “let him hit that” and that he was “black from the waist down”. Her sergeant additionally stated that if she obliged, he could help promote her to the rank of sergeant. The sergeant also consistently made disparaging sexual comments about women in general and threatened to remove Jennings from his unit in favor of another female officer with whom he wanted to have sex.
Jennings first brought a complaint regarding her working conditions in May 2010, when she told her captain that she felt she was being treated differently for being a woman. Nothing was done after this complaint so Jennings again complained in November 2010 that she was tired of the comments and being called a “bitch.” Again, nothing was done to stop the harassment Jennings was experiencing. Rather, the deputy chief threatened that if she filed a formal complaint she would be transferred out of her unit. In light of this threat, Jennings did not file a formal complaint until May 6, 2011. After her complaint, her sergeant was transferred out of the unit and she subsequently had no further interaction with him. . Yet, even after her sergeant was transferred, she was still subjected to vulgarities from other male officers and experienced continued retaliation.
Specifically, Jennings felt she was: deprived overtime, banned from processing warrants, not allowed to attend advanced training, banned from briefings with coworkers, and had her Blackberry taken. Finally, after years of discrimination and retaliation, Jennings filed a complaint with the EEOC in 2013 alleging quid pro quo harassment, hostile work environment, retaliation, and First Amendment Free Speech interference.
The district court found that the quid pro quo and hostile work environment claims were time barred because the conduct ceased to occur on May 11, 2011, when the sergeant was transferred. However, the Court agreed that the evidence showed that Jennings had suffered adverse employment actions after she made complaints about the sexual harassment through the loss of training opportunities, freeze outs from meetings, the taking of her Blackberry, and her ultimate transfer out of her unit. Because the department failed to offer a legitimate reason for the transfer, the district court found that Jennings could survive summary judgment and go forward on this claim.
Regarding Jennings claim of First Amendment violations, the district court followed the Sixth Circuit in finding that sexual harassment complaints, like racial harassment complaints, are matters of public concern. The Court acknowledge that the form and context of Jennings speech did not weigh heavily in favor of concluding that she was acting as a citizen because she filed internal grievances of sexual harassment. However, the Court also reasoned that the form and context of her speech also did not weigh heavily in favor of concluding that she was acting as an employee when doing so. Because of this, the district court found summary judgment inappropriate and allowed the claim to proceed.. Additionally, the district court rejected the department’s argument that Jennings was acting pursuant to her duties as an employee, again citing the Sixth Circuit.
In summary, the district court found that an officer could pursue her claims of retaliation and First Amendment violations after she complained about experiencing sexual harassment and subsequently lost out on training opportunities, failed to receive backup, lost her phone, and was ultimately transferred.
This is a unique case because often employees who pursue harassment and retaliation claims in the workplace do not understand that by speaking out about the harassment, they may have protection under the First Amendment as well.
Sexual harassment and how it is handled by the employer does not just affect the victim, but affects other women in the workplace as well. Not only do employees have an interest in knowing whether or not their superiors are engaging in sexual harassment, it is equally important how that conduct and any complaints about the conduct are handled by the employer.
The public has a strong interest in making sure that their governmental employers are treating employees fairly and lawfully without regard for sex or gender. The public also has a strong interest in making sure that sexual harassment complaints are investigated and that appropriate correction action is taken.
As held in this case, by filing sexual harassment complaints internally or even with the EEOC, an argument was successfully made that these complaints are matters of public concern and do not just affect that particular female employee, but affect the public at large.
The important takeaway from this case is that if you are experiencing workplace harassment on the basis of sex, race, etc. and speak out on it, in addition to any sort of harassment or retaliation claim, you might also be able to show a First Amendment violation.
**Visit our Premium Website for more information on The Right to Free Speech and Gender Discrimination. **
