Employment Law

• DOI: http://doi.org/10.1002/nba.30295
• Date: 01 March 2017
• Published date: 01 March 2017

10

MARCH 2017NONPROFIT BUSINESS ADVISOR

© 2017 Wiley Periodicals, Inc., A Wiley Company • All rights reserved

DOI: 10.1002/nba

Employment Law

Here’s a look at several recent notable lawsuits involving nonprots. Nonprots should regularly review

employment laws and their compliance efforts to avert similar issues.

Retaliation

Video camera footage helps defeat suit

In 2010, Denise Blomker began working as a

secretary at the U.S. Fish and Wildlife Service.

In both March 2013 and February 2014, she was

disciplined for “raising her voice to her supervisor,

ignoring and walking away from her supervisor

during a conversation, and raising her voice in a

discourteous and disrespectful manner in the open

workplace.”

In April 2014, the agency sent her a letter stating

that she had been terminated for (1) calling her su-

pervisor “a god-d***ed f***ing liar,” (2) twisting her

supervisor’s arm and (3) also stating that she would

send copies of some emails to the Equal Employ-

ment Opportunity Commission.

Blomker led a suit claiming both a hostile work

environment because of sexual harassment and a

retaliation claim.

With respect to her sexual harassment claim,

Blomker alleged that co-worker Tom Will had on

several occasions swung a candy basket, and then

put the candy that had fallen onto the oor back

into the basket. She also claimed he had once: (1)

moved his nger toward her shirt and stopped ap-

proximately three inches from her breasts, (2) stood

extremely close to her with an erection, (3) walked

up behind her and stood extremely close and (4)

blocked her from exiting her cubicle. Blomker also

alleged that co-worker Richard Rottman picked at

a seam in the crotch of his pants while she had a

conversation with him on two different occasions,

and once had an erection while speaking to her.

With regard to her retaliation claim, Blomker al-

leged several situations that constituted retaliation

based on her previous reports of discrimination,

which were: (1) she was unnecessarily blamed and

criticized, (2) she was not kept current about ofce

news, (3) there was poor communication with her

co-workers and supervisors, (4) people talked about

her discrimination complaints, (5) her co-workers

sometimes did her job, (6) she had antagonistic re-

lationships with her bosses, (7) she did not receive a

raise, (8) she was not permitted to take classes and

(9) she was suspended.

The trial judge dismissed the suit.

EMPLOYER WINS ➔ On appeal, a majority of

the court ruled that the events described by Blomker

did not rise to the level of actionable sexual harass-

ment. It explained that there were only seven events

over nearly a three-year period, none of the alleged

incidents involved actual touching and the candy

incidents were not sexual in nature.

With respect to her retaliation claim, the majority

said Blomker was required to prove her discrimina-

tion complaints were the only reason why she was

red. It ruled that Blomker had no chance of proving

it because video footage showed the principal reason

she was red was that she had created a disruptive

scene by rushing to get into an elevator with her

supervisor and starting a loud screaming match.

[Blomker v. Jewell, Secretary of the United States

Department of the Interior, U.S. Court of Appeals

for the 8th Circuit, No. 15-1787, 08/05/2016].

Discrimination

Employee’s suit disappears

Tara Ford, a black female, worked for the U.S.

Postal Service at the Tulsa northeast station.

Supervisor Lilly Kimrey allegedly touched Ford’s

buttocks on May 12, 2004. Four days later, Kimrey

purportedly touched Ford’s buttocks again, and also

stuck her hand between Ford’s legs. An investigation

ultimately resulted in Kimrey being demoted and

transferred to Tulsa’s downtown station.

Because of a shortage of personnel, Ford was

required to report to the downtown station at 7:30

a.m. on May 23 to work at one of the lobby windows.

Kimrey arrived at the same downtown station at

11:00 a.m. on that day. A few minutes later, Ford

thought she heard Kimrey’s voice, became upset,

lled out a leave slip, and left. Ford did not tell

anyone in management that she was upset, nor did

she ever request that Kimrey be moved to another

location.

Ford led a suit claiming both racial and sexual

discrimination. She also claimed her assignment to

the downtown station had been in retaliation for

her earlier complaints about Kimrey. The USPS

responded with a motion for summary judgment,