Minarsky v. Susquehanna Cnty.

• Decision Date: 03 July 2018
• Docket Number: No. 17-2646,17-2646
• Citation: 895 F.3d 303
• Parties: Sheri MINARSKY, Appellant v. SUSQUEHANNA COUNTY; Thomas Yadlosky, Jr.
• Court: U.S. Court of Appeals — Third Circuit

895 F.3d 303

Sheri MINARSKY, Appellant

v.SUSQUEHANNA COUNTY; Thomas Yadlosky, Jr.

No. 17-2646

United States Court of Appeals, Third Circuit.

Argued April 18, 2018

Opinion Filed: July 3, 2018

David M. Koller, Esq. [ARGUED], Erin Grewe, Esq., Koller Law, 2043 Locust Street, Suite 1B, Philadelphia, PA 19103, Counsel for Appellant Sheri Minarsky

Dana M. Zlotucha, Esq. [ARGUED], Michael J. Donohue, Esq., Kreder Brooks Hailstone, 220 Penn Avenue, Suite 200, Scranton, PA 18503, Counsel for Appellee Susquehanna County

Gerald J. Hanchulak, Esq. [ARGUED], The Hanchulak Law Offices, 604 South State Street, Clarks Summit, PA 18411, Counsel for Appellee Thomas Yadlosky, Jr.

Before: GREENAWAY, JR., RENDELL, and FUENTES, Circuit Judges

OPINION

RENDELL, Circuit Judge:

Thomas Yadlosky, the former Director of Susquehanna County’s Department of Veterans Affairs, made unwanted sexual advances toward his part-time secretary, Sheri Minarsky, for years. She never reported this conduct and explained in her deposition the reasons she did not do so. Although Yadlosky was warned twice to stop his inappropriate behavior, it was to no avail. The County ultimately terminated Yadlosky when the persistent nature of his behavior toward Minarsky came to light.

Minarsky seeks to hold Yadlosky, her supervisor, liable for sexual harassment, and her former employer, Susquehanna County, vicariously liable for said harassment. At issue in this case are the two elements of the Faragher - Ellerth affirmative defense that Susquehanna County has raised.¹ In granting summary judgment in favor of the County, the District Court held that the elements of this defense had been proven as a matter of law. We conclude that given the facts of this case, the availability of the defense regarding both the first element, whether the County took reasonable care to detect and eliminate the harassment, as well as the second element, whether Minarsky acted reasonably in not availing herself of the County’s anti-harassment safeguards, should be decided by a jury. Accordingly, we will vacate the judgment of the District Court and remand for further proceedings.²

I. Factual Background

On appeal from the grant of summary judgment in favor of Defendant Susquehanna County, we view the facts in the light most favorable to Plaintiff Minarsky. Nevertheless, the facts are largely undisputed.

A. Yadlosky’s Alleged Harassment

Minarsky served as a part-time secretary at the Susquehanna County Department of Veterans Affairs, working Mondays, Wednesdays, and Fridays. On Fridays, Minarsky worked for Defendant Yadlosky. They worked together in an area separate from other County employees.³ Minarsky alleges that soon after she started working at the Department in September of 2009, Yadlosky began to sexually harass her. Yadlosky would attempt to kiss her on the lips before he left each Friday, and would approach her from behind and embrace her, "pull[ing] [her] against him." A. 98. When Minarsky was at her computer or the printer, Yadlosky would purportedly massage her shoulders or touch her face. She testified that these advances were unwanted, and happened frequently—nearly every week. As they worked together, alone, others were seldom present to observe Yadlosky’s conduct, other than during the holiday season each year, when Yadlosky asked Minarsky and other female employees to kiss him under mistletoe.⁴

Yadlosky engaged in other non-physical conduct that Minarsky found disturbing. For example, he often questioned Minarsky about her whereabouts during her lunch hour and with whom she was eating. He called her at home on her days off under the pretense of a work-related query but proceeded to ask personal questions. Yadlosky allegedly became hostile if she avoided answering these calls. He sent sexually explicit messages from his work email to Minarsky’s work email, to which Minarsky did not respond. He also behaved unpredictably, as on one occasion when he insisted that Minarsky take two full days off, unpaid, to drive her daughter to her cancer

treatment, but soon after, he chastised her for seeking time off—even though it fell on days they did not work together.

Minarsky alleges that the harassment intensified as time passed. When the harassment first began, she mildly and jokingly told him to stop. He did not. She claims that Yadlosky knew that her young daughter was ill and thus knew Minarsky depended on her employment to pay medical bills. She states that she feared speaking up to him in any context, let alone to protest his harassment, because he would react and sometimes become "nasty." A. 142.

B. Prior Reprimands

Yadlosky reported to Sylvia Beamer, the Chief County Clerk, who reported to the Susquehanna County Commissioners. On two separate occasions, Beamer became aware of Yadlosky’s inappropriate behavior toward other women, and reprimanded him. County Commissioner Maryann Warren was aware of one of these incidents. First, in 2009, Beamer observed Yadlosky embrace a female employee. Beamer verbally admonished Yadlosky and told him that such behavior was inappropriate. Second, Commissioner Warren observed Yadlosky act inappropriately with the County’s Director of Elections in late 2011 or early 2012. Warren notified Beamer that she saw Yadlosky hug the Director and kiss her on the cheek. Beamer verbally reprimanded Yadlosky once again and told him he could face termination if his inappropriate behavior continued. After both incidents, there was no further action or follow-up, nor was any notation or report placed in Yadlosky’s personnel file.

Minarsky became aware of the first reprimand, but not the second. In Minarsky’s deposition, she recounted a time when another employee, Connie Orangasick, saw Yadlosky approaching Minarsky from behind and hugging her. Orangasick walked by, noticed the situation, and said to Yadlosky, "I thought you said yesterday you're not supposed to do that anymore." A. 99. A few minutes later, he responded that he could do whatever he wanted "[o]ver here," referring to the building where he and Minarsky were largely separated from other employees. A. 100. When Minarsky followed up with Orangasick, she learned that Beamer had warned Yadlosky about his inappropriate behavior. After being warned, he then allegedly came back to his office and joked about the incident to Orangasick.

Minarsky also learned that other women had similar encounters with Yadlosky. In addition to the mistletoe episodes, Minarsky spoke to another secretary, Rachel Carrico, who mentioned that she had problems with Yadlosky’s hugging, as well. Also, once when Beamer was in the Veterans Affairs office, Minarsky observed Yadlosky as he was attempting to embrace Beamer, but she stopped him and said, "Get away from me." A. 111.

C. The County’s Anti-Harassment Policy

On her first day of work, Minarsky read and signed Susquehanna County’s General Harassment Policy. It states that harassment based upon "sex, age, race, religion, national origin, ethnicity, disability, sexual preference and any other protected classification" is prohibited. A. 166; A. 205–06. According to the policy, an employee could report any harassment to their supervisor; if the supervisor is the source of the harassment, the employee could report this to the Chief County Clerk or a County Commissioner.

During the four years Minarsky avers that she was harassed by Yadlosky, she did not report this harassment to either Beamer, the Chief County Clerk, or any of the County Commissioners. Minarsky alleges that she feared elevating the claims to County administrators, because Yadlosky repeatedly warned her not to trust the County Commissioners or Beamer. She claims that he would often tell her to look busy or else they would terminate her position. These warnings, Minarsky contends, along with the fact that Yadlosky had been reprimanded unsuccessfully for his inappropriate advances toward others, prevented her from reporting Yadlosky.

D. Yadlosky’s Termination

In her deposition, Minarsky recounted that she finally revealed the harassment and its emotional toll on her health to her physician in April of 2013. The doctor discussed the situation with Minarsky and emphasized the need to bring an end to the conduct. She encouraged Minarsky to compose an email to Yadlosky, so she would have some documentation.

Minarsky testified that she agonized over this, but finally sent Yadlosky an email on July 10, 2013, prompted by the incident in which Yadlosky allegedly reacted negatively when Minarsky asked to take time off for her daughter’s treatment. She wrote, "I want to just let you know how uncomfortable I am when you hug, touch and kiss me. I don't think this is appropriate at work, and would like you to stop doing it. I don't want to go to Sylvia [Beamer]. I would rather resolve this ourselves." A. 170. Yadlosky responded,

First and more importantly, I never meant to make you feel uncomfortable nor would I ever want to offend you in any way and I will STOP IMMEDIATELY. Secondly, almost from the first day you started (3 years and 9 months) I have been affectionate to you, among other people I was close to[ ] (only in a friendly manner, no other way intended), why have you never said anything to me before. Third, and to me most important, I thought we had a very good working relationship where we could approach one another on any matters. It disturbs me that you would put this out on an e-mail and not talk to me about this. Apparently I was wrong on thinking that. If you wanted to do this in writing, for proof, you could have typed this out and I would have signed it and you could have kept it.

A. 170. He confronted Minarsky about the email on July 12; she claims that he seemed mostly concerned that his reputation might be tarnished if someone else read her email.

Around the same time, Minarsky confided in her friend and co-worker, Rachel Carrico, about Yadlosky’s harassment. When Carrico mentioned what was happening between Yadlosky and Minarsky to ...