Employment Law

• DOI: http://doi.org/10.1002/nba.30383
• Published date: 01 November 2017
• Date: 01 November 2017

10

NOVEMBER 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.

Sexual Harassment

Defendant’s alleged failure to act keeps

former employee’s suit alive

Garrett Fisk began working for the Mid Coast

Presbyterian Church in June 2012 as a temporary

employee. A few months later, Fisk told the pastor

that Earle Warren—a church member who vol-

unteered in various roles—had sent him an email

offering oral sex.

After Fisk became a full-time employee in Janu-

ary 2013, he reported to the pastor that Warren had

given him an unwanted massage in the church ofce.

In August, Fisk told the pastor that Warren had

pinched his nipples in the church ofce.

With permission from the church, Fisk missed

time from work in March 2014 to deal with both

family and health issues.

Fisk approached the church personnel committee

in April to complain about Warren. He told them

in that meeting that he needed more protection be-

cause the pastor had not done enough to address

his concerns.

Fisk was red without warning the next month.

Fisk led a suit asserting several claims against

the church. Those included: (1) sexual harassment

in violation of Title VII, (2) disability discrimination

in violation of the Americans with Disabilities Act

and (3) retaliation for exercising his rights under the

Family and Medical Leave Act.

According to Fisk, the pastor afrmatively and

actively derided him for his disability of dyslexia

while he worked there, and she had also made a

comment to a co-worker about his inability to read.

The church led a motion to dismiss, arguing

that Fisk’s allegations were insufcient to support

those claims.

EMPLOYEE WINS ➔ With respect to the claim

for unlawful retaliation under the FMLA, the judge

said Fisk was required to demonstrate that: (1) he

availed himself of a protected FMLA right, (2) he

was adversely affected by an employment decision

and (3) there was a causal connection between his

protected conduct and the adverse employment

decision.

According to District Judge Jon Levy, the only

factual allegation in the complaint that related to the

causation element of Fisk’s FMLA claim was that

he took time off from work in March of 2014, and

his employment was terminated two months later.

He dismissed that claim, explaining that temporal

proximity alone was not enough to support an infer-

ence of causation of FMLA retaliation.

However, the judge ruled that Fisk had plausibly

stated a Title VII claim, explaining that the com-

plaint had alleged that the church was aware of

Fisk’s reports that Warren committed multiple acts

of unwanted sexual touching and communication,

and yet it did nothing to address his concerns.

With respect to the ADA claim, Judge Levy said

that the 1st Circuit had recognized that a plaintiff

could maintain a claim for disability harassment

under a hostile work environment theory. He de-

nied the church’s motion with respect to that claim,

stating that the standard for pleading such a theory

was lenient.

[Fisk v. Mid Coast Presbyterian Church, et al., U.S.

District Court for the District of Maine, et al., No.

2:16-cv-00490, 05/04/2017].

Title VII

Lack of formal charges means

no protection for EEO ofcer

In 2008, Philadelphia Housing Authority Equal

Employment Opportunity Ofcer Rosanna Grdinich

told Executive Director Carl Greene that she had

recently received three anonymous phone calls that

had accused him of sexually abusing and harassing

a female employee. According to Grdinich, Greene

simply walked away from her without responding.

An investigation was never opened with respect to

those calls because Grdinich learned that the alleged

victim no longer worked for the PHA.

Without explanation, Grdinich was transferred

to the police department in December, where her

job duties changed substantially. As a part of that

transfer, Grdinich was assigned to work under Chief

of Police Richard Zappile, even though she had