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By Hassan Kanu
Nov. 3 — A former firefighter for Clinton, Utah, who alleged that managers told the staff that sexual harassment was OK as long as perpetrators weren't caught can pursue retaliation and harassment claims despite failing to describe those allegations in her Equal Employment Opportunity Commission charge, a federal court ruled Nov. 2.
Shelley Drescher's claims under Title VII of the 1964 Civil Rights Act survive a motion to dismiss by the city, its fire department and several co-workers because her EEOC intake questionnaire and addendum can be considered a formal “charge,” and these documents contained details about the alleged harassment and retaliation, Judge Dale Kimball of the U.S. District Court for the District of Utah held. The city didn't seek dismissal of Drescher's sex discrimination allegations that she was passed over for promotions four times.
Public employees risk forfeiting their legal claims unless they file an EEOC charge within a limited time period after experiencing discrimination and must specifically describe the underlying conduct in the EEOC charge. The U.S. Supreme Court in Federal Express Corp. v. Holowecki, 552 U.S. 389, 102 FEP Cases (2008), loosened the standards for what constitutes a formal EEOC charge (39 DLR AA-1, 2/28/08).
Under Holowecki, any document may constitute a charge if it includes the information required by EEOC regulations and can “be reasonably construed as a request for the agency to take remedial action to protect the employee's rights.” Drescher's questionnaire and addendum meet these criteria, and her claims therefore survive, Kimball ruled.
Drescher began working as a part-time firefighter in 2008, according to the opinion. She was married to a fireman at the department.
On her first attempt, Drescher was told she couldn't apply for promotion to a full-time position because she was married to another firefighter—although this wasn't actually against policy, she alleged in her complaint.
She was subsequently denied promotions three more times. Drescher alleged that department officials, including the chief, told her explicitly that they would lower her promotional test scores and inflate those of her competitors. She added that skills evaluators also sabotaged her by giving her improper instructions during her tests.
Drescher alleged that male co-workers “routinely made crude remarks and sex jokes” and would “often talk about their sexual fantasies involving female patients” they encountered. They also posted pictures of scantily clad women in public areas, routinely used the women's bathroom and locker room and sometimes walked around the department “completely naked,” she said in the complaint.
Her complaints went unaddressed. Drescher also alleged that during a sexual harassment seminar, the deputy chief told “a number of crude sex jokes, and said that conduct constituting sexual harassment was okay so long as the Chiefs did not catch [the firemen] doing it.”
Drescher was terminated in 2013. She later filed an EEOC charge and checked the box for discrimination based on sex. She didn't check a box for retaliation, and didn't allege sexual harassment in the charge, the court said.
The city cited the doctrine of administrative exhaustion, saying Drescher's claims should be dismissed because she hadn't fulfilled all the administrative prerequisites required by law before one can sue in court under Title VII.
Pointing to the rule requiring that Drescher's in-court claims be based on allegations contained in her charge, the city the harassment and retaliation claims must be dismissed because they weren't described therein.
The court noted that Drescher's questionnaire contained all the information required by EEOC regulations. In addition, the questionnaire permitted addenda, and Drescher submitted “a six-page addendum, describing her situation in detail,” concerning the allegations of retaliation and sexual harassment, Kimball said.
The city's arguments therefore fail under Holowecki, the court held.
Michael Studebaker of Utah represented Drescher. Snow Christensen & Martineau represented the city parties.
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Text of the opinion is available at http://www.bloomberglaw.com/public/document/SHELLEY_DRESCHER_Plaintiff_vs_CLINTON_CITY_et_al_Defendants_No_11.
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