Appellate Panel Restores Teenager's Sex Harassment Suit

November 7, 2007 ( - A federal appellate court has reinstated a sexual harassment suit against a Milwaukee fast food restaurant operator in which the employer was charged with the retaliatory firing of a teenage female employee after her mother complained about her daughter's harassment allegations.

The 7 th U.S. Circuit Court of Appeals ruled in an unusually strongly-worded opinion that Chief U.S. District Judge Rudolph T. Randa of the U.S. District Court for the Eastern District of Wisconsin prematurely threw out the suit filed by the U.S. Equal Employment Opportunity Commission (EEOC) on behalf of 16-year-old Samekiea Merriweather.

Circuit Judge Richard Posner, writing for the appellate court, said there were still too many unresolved issues in Merriweather’s harassment allegations against V & J Foods, Inc., a Burger King and Pizza Hut franchisee, and her former supervisor Tony Wilkins, 35, at a Milwaukee Burger King location.

Merriweather alleged she was eventually fired after rebuffing Wilkins’ sexual advances and demands for sex and after her mother approached company officials about the matter. The young woman had first tried to pursue the matter herself, but ran into a roadblock when a phone number she was given was not to the employer’s human resource department and the assistant manager supplying the bad number had no others to suggest, according to the opinion.

Posner’s opinion included a number of unusually pointed comments about why Randa needed to take more time to consider the case.

“We were astonished when V & J’s lawyer told us at (oral) argument that Wilkins’ conduct toward Merriweather was not sexual harassment, though in his (legal) brief he had acknowledged that it was,” Posner charged. “We hope V & J, the owner of numerous fast-food restaurants, knows better.”

Posner said he and his colleagues were similarly taken aback by arguments from the employer's lawyer on the issue of whether the company's employee complaint procedure was legally adequate.

"In this case the employees who needed to be able to activate the complaint procedure were teenage girls working in a small retail outlet," Posner asserted. "V & J's lawyer surprised us a second time by telling us that an employee's age and education are irrelevant to the adequacy of the grievance machinery established by the employer—if it is a machinery within the competence of a 40-year-old college graduate to operate, it will do for a 16-year-old girl in her first paying job."

While federal anti-discrimination laws do not mandate employers have a complaint procedure for each worker, Posner said, the procedure has to be appropriate for the type of employees the company hires.

"But it is part of V & J's business plan to employ teenagers, part-time workers often working for the first time," Posner wrote. "Knowing that it has many teenage employees, the company was obligated to suit its procedures to the understanding of the average teenager."

A Complaint Line

The company needed to give each employee notice that they could pursue harassment complaints by calling a toll-free number to the employer's human resource department. "Given V & J's size, it must have a number of human relations personnel," Posner declared.

Finally, Posner said Randa needed to further consider the issue of whether Merriweather should be allowed to pursue her retaliatory firing allegation when the acts alleged to have precipitated the firing were that of her mother.

"People often act through agents, such as lawyers; and minors, especially because of their legal and functional incapacities, must act through agents in any legal matter, and their agents are their parents or guardians," Posner pointed out. "Merriweather could not have sued V & J on her own. And if she sued by her "next friend" (her mother) …   and was fired in retaliation, it would be absurd to think that she had not been fired for her opposition to the company's mistreatment of her."

Posner continued: "Merriweather's mother acted as her daughter's agent in confronting Wilkins about the sexual harassment of her daughter. In retaliating against Merriweather for her mother's intervention, Wilkins was retaliating against the principal, her daughter, just as if Merriweather's lawyer had complained to Wilkins about Wilkins's harassing his client and he had responded by firing Merriweather."

The 7th Circuit ruling is  here .