Today we look at a case that's interesting both factually and procedurally. In Jenkins v. Mabus, 2011 WL 2936331 (8th Cir. 2011), Plaintiff sued the Secretary of the Navy for sexual harassment and retaliation under Title VII as well as state law claims. According to her original Charge of Discrimination, for a two month period in late 2003, she was continuously harassed with sexually suggestive comments, repeated requests for sex, an inappropriate touching and fondling of her legs and thigh. After she reported the incident, she was subjected to a series of insults.
Her claim was dismissed by the lower court for failure to exhaust her administrative remedies. Pursuant to Title VII regulations, discrimination claims against the federal government must be initiated with an Equal Employment Opportunity counselor within 45 days. Since she did not report anything until 68 days after the sexual harassment ended, her complaints were deemed untimely. As part of its ruling, the Eighth Circuit determined that the insults that followed did not constitute continuing sexual harassment which would have tolled the 45-day window to report the harassment to an EEO counselor.
Interestingly, though such conduct after the two-month period clearly appeared to be actionable retaliation, Plaintiff did not raise issues on appeal relating to retaliation, waiving any right to appeal on the issue.
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