Summary Judgment for Former Employer in Sexual Harassment Suit Reversed - U.S. Fourth Circuit
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Summary Judgment for Former Employer in Sexual Harassment Suit Reversed

Whitten v. Fred's, Inc., No. 09-1265, involved a challenge to the district court's grant of summary judgment against the plaintiff in her sexual harassment suit against her former employer. 

In addressing procedural issues not considered by the district court, the court held that the plaintiff properly exhausted state administrative remedies and timely filed her lawsuit.  Furthermore, the court held that judicial estoppel does not preclude plaintiff from pursuing her claims against her former employer because she disclosed her potential claims in her bankruptcy petition.

Next, in reversing the district court's grant of summary judgment in favor of the defendant, the court stated: "Under these circumstances, it is enough for us to note that Whitten's evidence, which shows that she was subjected to verbal abuse and, most importantly, to physical assaults of a highly sexual and offensive nature, is sufficient to create a question of fact as to the first three elements of her claim [under the South Carolina Human Affairs Law]."  As for the fourth and final element, the court concluded that the offender was plaintiff's supervisor rather than her co-worker, and as such, defendant is subject to vicarious liability for the supervisor's conduct.  However, on remand, the defendant will be allowed to assert affirmative defense to liability and damages as there was no tangible employment action and no official act precipitating the asserted constructive discharge. 

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