3rd Cir. Revives Lawsuit Tied to Bikini Photo Request, Firing

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By Hassan Kanu

June 28 — A former postal worker who alleges that her manager harassed and eventually fired her after she refused to give him a photograph of herself wearing a bikini had her retaliation and sexual harassment lawsuit revived by the U.S. Court of Appeals for the Third Circuit ( Kacian v. Postmaster Gen. of U.S. , 2016 BL 204805, 3d Cir., No. 15-1952, unpublished 6/27/16 ).

Hillary Kacian, who worked at a post office in Johnstown, Pa., claims that she made administrative complaints after her manager twice asked for the picture. When she refused, he began making unwelcome comments about her looks and private life.

She argued that comments about a cold sore and about her staying off her knees were indicative of sexual harassment. The manager also began assigning her more work than she could handle and refused to give her directions or help, Kacian alleged.

The Third Circuit's reversal of the lower court decision is notable for its analysis of what constitutes protected activity under Title VII of the 1964 Civil Rights Act—or what types of complaints employers and managers can't punish an employee for.

The ruling is also notable for the court's treatment of the question of how to show that a manager knew of an employee's complaint against him.

‘Objectively' Reasonable Complaints?

The appeals court explained that retaliation charges under Title VII must be supported by evidence that the employee had an “objectively reasonable belief” that what she complained about was actually unlawful discrimination.

Kacian's allegations were that her manager, George LaRue, said, “Oh, looks like you got something on your lip. You might want to get that checked out,” in reference to a cold sore. She believed the comment connoted herpes, Judge Joseph Greenaway wrote.

On another occasion, LaRue “told her to ‘stay off [her] knees' ,” after Kacian had a slip and fall accident. LaRue also allegedly had a female supervisor tell Kacian her shorts were too short, even though they were regulation length, and “made disparaging comments to her about her weight,” the court wrote.

The lower court reasoned that the small number of incidents, and their nature, don't suggest that a reasonable person would think they'd been a victim of sexual harassment, but the Third Circuit disagreed.

“The incidents Kacian complains of were not as alleged isolated, nor was it ambiguous that she was the intended target,” Greenaway wrote. He said Kacian could have believed the conduct was unlawful discrimination, “reasonably, and in good faith.”

Attributing Knowledge to Supervisor

The USPS argued that Kacian also can't prove her claims because LaRue didn't know about her complaints, and therefore couldn't have retaliated on that basis.

Knowledge, “like any other mental state, can be proved with circumstantial evidence,” the court said. Greenaway noted that only seven days passed between Kacian's complaint and termination. In addition, the Johnstown post office “employed only four supervisors,” and Kacian's union representative said he believed LaRue learned of her complaint through another manager. Lastly, the complaint involved specific allegations against LaRue.

That evidence “could allow a juror to infer LaRue's knowledge,” the court held.

The Williams Law Offices represented Kacian. USPS attorneys and the U.S. attorney's office represented the USPS.

To contact the reporter on this story: Hassan Kanu in Washington at hkanu@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

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