Employment Law

• Date: 01 June 2018
• DOI: http://doi.org/10.1002/nba.30463
• Published date: 01 June 2018

NONPROFIT BUSINESS ADVISOR JUNE 2018

10 © 2018 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.

Hostile work environment

Lack of evidence stalls suit

When Yasmin Montano became the Santa Fe

postmaster in 2011, Mike Flores was her supervisor.

After she led harassment charges with the Equal

Employment Opportunity Commission in 2013,

Montano brought a suit against the postal service

that claimed a hostile work environment because of

sexual harassment.

However, the trial judge dismissed it.

On appeal, Montano argued that Flores orches-

trated a campaign of sex discrimination and sexual

harassment against her that created a hostile environ-

ment. She asserted that he: (1) mimicked her voice and

demeanor in a negative and condescending manner;

(2) changed his voice to a very high-pitched, victim-

type voice outside of her presence after he spoke to

Montano on the phone or in person; (3) called her

names, like “Yazzie,” in spite of her request that he

refrain from doing it; and (4) advised another postal

employee to “take a Yaz pill,” meaning that employee

should calm down.

Montano also contended that Flores imposed three

fact-nding interviews on her between October 2012

and May 2013. She argued that such interviews were

considered disciplinary, and subjected individuals to

scrutiny and likely punishment. Montano explained

that they included a written notice of alleged decien-

cies, the opportunity to have a representative present

and the potential for discipline.

The appellate court said that establishing a hostile

work environment required Montano to show that

a rational jury could nd that the workplace was

permeated with discriminatory intimidation, ridicule

and insult sufciently severe or pervasive to alter the

conditions of her employment and create an abusive

working environment. It also said that the severe

and pervasive harassment must have been based on

her gender.

EMPLOYER WINS ➔ Even after assuming that

the incidents relied on by Montano could be described

as severe and pervasive, the panel said she had failed

to allege facts showing that they were gender-based.

In an attempt to make the required gender-based

showing, Montano pointed to the incidents of: Flores

calling her names such as “Yaz” or “Yazzie”; telling

employees to take a “Yaz pill”; using a high-pitched

voice to mimic her voice to other employees; and

threatening her with termination and acting generally

unprofessional and offensive in front of other postal

employees and subordinates.

But the court stated that those incidents failed

to sustain her claim, whether they were considered

individually or together. The panel said Montano

failed to explain how making fun of her name, though

undoubtedly insulting, was gender-based. It acknowl-

edged that women tended to have higher-pitched

voices than men, but said that she had failed to show

that the use of a high-pitched voice was intended to

mock her gender. Finally, it said that threatening

termination and conducting unwarranted disciplinary

proceedings were relevant in a hostile work environ-

ment suit only if they were motivated by gender bias.

The appellate court afrmed the trial judge’s rul-

ing.

[Montano v. Brennan, No. 17-2053, U.S. Court of

Appeals for the 10th Circuit, 12/20/2017].

Sexual harassment

Former cop’s harassment neither severe

nor pervasive

Former Birmingham Police Department ofcer

Terrie Johnson led a suit claiming a hostile work

environment because of sexual harassment from

fellow ofcer Isaac Ephraim. According to her suit,

Ephraim allegedly began the campaign of harassment

after she rebuffed his advances.

Johnson alleged that Ephraim once put his hand on

her thigh without her consent, and after she removed

his hand, Ephraim responded that he knew she liked

it and again put his hand on her thigh.

Johnson also alleged that he: (1) swung at her as if

to punch her and told her “sh*t happens when you

talk like a man,” (2) once told her when he drove

past that she had a “nice car,” (3) showed up at one

of her calls and began “blowing towards her thigh,”

(4) referred to female ofcers as “b*tches” on one

occasion and (5) knocked her off balance three times

by intentionally bumping into her.

The city led a motion for summary judgment,

arguing that Johnson’s allegations fell far short of

demonstrating the requisite severity and pervasiveness.