Sex Harassment Case Reinstated by Appellate Panel

November 13, 2007 ( - A federal appellate court has thrown out a lower court ruling dismissing a sexual harassment case by a male university official against his female supervisor, saying that the employee may not be able to be blamed for seeking police protection from the supervisor's advances.

The ruling by the   11 th US Circuit Court of Appeals came in a lawsuit by plaintiff Dushun Scarbrough against Florida A&M University in Tallahassee, Florida, over a dispute with his former supervisor, Kimberly Davis, which Scarbrough contended led directly to his being fired from the university.

However, Senior U.S. District Judge William Stafford of the U.S. District Courtfor the Northern District of Florida ruled in December 2006 that Scarbrough had “fallen far short” of proving wrongdoing by the university which he claimed fired him because his complaints about his work environment were too disruptive.  

Circuit Judge Rosemary Barkett, writing for the court, said Stafford was too quick to rule for the university based only on the initial legal documents of the case and that there were too many legitimate factual disputes that needed to be resolved by a jury.

Chief among the unresolved questions, according to the appellate judges: whetherScarbrough’s summoning of the police after he said his dispute with Davis escalated to the point where he feared for his safety would be considered “protected conduct” under federal anti-discrimination laws for which complaining workers cannot be fired.

“Florida A&M maintains that Scarbrough’s involvement of the police in his dispute with Davis was unnecessarily disruptive and therefore adequate groundsfor termination of his employment,” Barkett wrote. “Although involving the police in an employment dispute will not always be considered part of the protected conduct that prohibits retaliatory action, where, as here, it allegedly derived from an effort to protect against actions that are intertwined and interrelated with alleged sexual harassment, it cannot be deemed the ‘unprofessional’ conduct for which an employee can be terminated. Accepting Florida A&M’s rationale would, for example, permit the termination of an employee who reported a rape by a

supervisor to the police. An employee cannot waive his right to police protection simply because police involvement may be disruptive to the workplace.”

According to Barkett’s ruling, Scarbrough claims that on December 22, 2004, Davis verbally attacked him with abusive and profane language, spat in his face and knocked papers out of his hand. Shortly after filing a formal complaint over the incident, Scarbrough’s tire was slashed. Scarbrough’s neighbor provided a description of the car that drove away from Scarbrough’s home at the time of the incident and that description resembled Davis’ car.

The appellate ruling said that Scarbrough finally called the university campus police and sought a court injunction against Davis. The university maintained that Scarbrough’s involvement of the campus police was “unnecessarily disruptive” and that it was reasonable to fire Scarbrough.

The appellate ruling in Scarbrough v. Board of Trs. Fla. A&M Univ 11th Cir., No. 07-10195 (Oct. 22, 2007) is here . The lower court ruling is here .