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First Circuit reverses trial court’s decision to dismiss harassment and retaliation case

Yesterday, the U.S. First Circuit Court of Appeals in Boston breathed new life into a worker’s sexual harassment and retaliation case.  The worker, Xiaoyan Tang, represented herself before the trial court.  She claimed that the defendants, which included Citizens Bank and related entities, subjected her to unlawful sexual harassment and then fired her because she complained about it.  The trial court dismissed Ms. Tang’s claims.  After that, she retained counsel who successfully persuaded the First Circuit to reverse the trial court’s decision.

Ms. Tang claims that her supervisor at Citizens Bank, David Nackley, sexually harassed her.  The trial court held that no reasonable jury could determine that she experienced sexual harassment because, among other reasons, the alleged harassment was not sexual in nature.  The First Circuit found that the trial court committed one of the Cardinal sins in assessing the merits of a sexual harassment claim:  it failed to consider context.  For example, Mr. Nackley allegedly made an odd comment about Tang’s “ass” and his “ass” getting together.  The trial court found that this comment, while perhaps boorish and unprofessional, would have been just as offensive to a man as to a woman.  The First Circuit rejected this reasoning because the trial court ignored the context of the case which included Mr. Nackley making sexual innuendos and doing other things indicating that he was coming on to Ms. Tang sexually.

The trial court also failed to address Ms. Tang’s retaliation claim.  Ms. Tang claimed that Citizens Bank fired her in retaliation for a complaint that she made about Mr. Nackley’s discriminatory behavior.  Perhaps because she represented herself before the trial court, Ms. Tang’s court complaint did not contain a specifically enumerated retaliation claim and that may be why the trial court did not discern a retaliation claim from the court complaint.  However, the First Circuit held that Ms. Tang’s court complaint contained the allegation that Citizens Bank retaliated against her because of the discrimination complaint that she submitted to Citizens Bank.

Citizens Bank argued that it fired Ms. Tang for a pattern of conduct that it had criticized her for before she even filed her discrimination complaint. Thus, Citizens Bank argued, no one could reasonably believe that it fired Ms. Tang due to her discrimination complaint because it was already dissatisfied with her performance before she filed her discrimination complaint.  The First Circuit rejected this argument.  The First Circuit found that a jury could reach a different conclusion from the evidence, namely, that Citizens Bank began to compile evidence that it could use to justify Ms. Tang’s termination only after she made her discrimination complaint.  This is an important holding from the First Circuit because employers who want to cover up an illegal motive for firing someone often dredge up old issues and claim to rely on those old issues when they fire the worker who complained. Thus, this case may be helpful to other workers who are fired in retaliation for complaining about unlawful activity.

This case also highlights the perils of representing yourself in court.  If Ms. Tang had retained a lawyer before her appeal to the First Circuit, she may never have had to appeal her retaliation claim.  An experienced lawyer would have likely drafted her court complaint in such a way that the trial court would not have missed the fact that she was pursuing a retaliation claim.  If you believe your employment rights have been violated, contact the Maine Employee Rights Group.  We may decide to represent you on a “contingent fee” basis which means that we do not get paid for our work unless we recover money for you.

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