The United States Court of Appeals for the Fourth Circuit told Baltimore yesterday that it would need to face a jury for sexual harassment claims filed by Katrina Okoli, who once worked as executive assistant to John P. Stewart, the director of Baltimore’s Commission on Aging and Retirement (“C.A.R.E.”). The court held in Okoli v. City of Baltimore that the district court erred in granting Baltimore summary judgment on Okoli’s sexual harassment claims. Judge Gregory wrote the opinion for the court, joined by Judge King and Judge Wynn. Judge Wynn filed an opinion concurring in part and concurring in the judgment. (Judge Wynn’s opinion says “concurring in part and concurring in the judgment,” while the summary near the caption says that Judge Wynn joined in Judge Gregory’s opinion; unclear how to square these two descriptions.)
The opening of Judge Gregory’s opinion leaves little doubt about where the decision is headed:
Appellant challenges the grant of summary judgment for her employer when her boss forcibly kissed her, fondled her leg, propositioned her, asked sexually explicit questions, described sexual activities he wished to perform, and then, after she spurned the advances and filed a harassment complaint, fired her.
Judge Wynn’s separate opinion is more solicitous of defense explanations and evidence abut the reasons for Okoli’s termination, even while agreeing on the ultimate outcome. For example, Judge Wynn and Judge Gregory differ in their assessment of the evidence about when the decision to terminate was made–an assessment, in part, about what inferences to draw from the creation date of a Microsoft Word document.
[T]he district court improperly inferred that Stewart had intended to fire Okoli before she complained simply because his Word document, “Katrina[ Okoli].doc” was created on March 23. The court did so largely on the basis of a CARE technician who stated that the file properties show it was created on March 23 and modified on March 31. To therefore infer that Stewart necessarily intended to fire Okoli for legitimate reasons on March 23 was clear error. That a computer file was created on a certain day tells us nothing about its contents on that day. It is entirely possible”Katrina.doc” could have been blank—or contained an unrelated or favorable review of her work, which Stewart later modified. Indeed there is already evidence in the record that Stewart modified his letter three times before delivering it. Okoli’s second amended complaint alleges that Stewart typed up a termination letter after reading her complaint. Viewing the evidence in the light most favorable to Okoli, we can infer that Stewart did not intend to fire her before April 1—and therefore a genuine dispute of material fact still exists on this front.
On March 23, 2005, Okoli demonstrated what Stewart saw as unacceptably insubordinate behavior. When Stewart arrived and asked her at 8:10 to assist in the preparation of documents for a meeting that morning, Okoli refused, stating that she would not assist him until 8:30. After returning from the meeting, Stewart asked Okoli to meet with him at 2:10. Okoli refused, stating that her lunch hour would not be over until 2:15. When Okoli finally met with Stewart, he informed her that her insubordination and “failure to improve her performance” constituted grounds for her termination. Stewart avers that he had another of his employees draft a termination letter for Okoli later on March 23. He claims that it was his intention to terminate Okoli’s employment the next day. However, on March 24, Okoli took a day off. The next day was Good Friday, and Okoli had scheduled vacation for the following Monday through Wednesday. Okoli took a sick day on Thursday. Accordingly, the next day that she was in the office was April 1, 2005, the day when she was terminated. Frank Johnson, the C.A.R.E. employee to whom Stewart delegated the task of drafting the termination letter, confirmed that it was initially drafted days before Okoli’s termination,although he couldn’t remember the exact date. [footnote 9]
[Footnote 9: There is arguably a question as to whether, when viewed in the light most favorable to Okoli, the evidence can support a reasonable inference that the decision to terminate her was made on March 23. However, in addition to the testimony of Johnson, who drafted Okoli’s termination letter, and Stewart, who made the termination decision and ordered the letter drafted, the record includes the affidavit of Lisa Veale, who stated that Stewart “shared with me the desire to terminate Okoli due to her performance and attitude prior to her termination date.” J.A. 84. Admittedly, the fact “[t]hat a computer file was created on a certain day tells us nothing about its contents on that day.” However, the record also includes a “termination letter” dated March 24, 2005, indicating that Okoli’s at will position would be terminated “effective March 28, 2005.” J.A. 184. I question whether, even viewing all the evidence in the light most favorable to Okoli, there can be, in light of the evidence presented by Defendants, a reasonable dispute regarding whether the decision to fire Okoli was made before or after Stewart gained knowledge of Okoli’s letter to the Mayor on April 1, 2005.]