Local Yacht Club Sails Free of Harassment Claim

Tillbery alleged in her lawsuit that she became a victim of sexual harassment in the fall of 2008, after the yacht club hired a new general manager in July of that year. The new general manager was Tillbery's direct supervisor and, according to Tillbery, sexually harassed her on numerous occasions. Tillbery further alleges that beginning in November 2008, the yacht club's Rear Commodore and board member also began harassing her. According to Tillbery's lawsuit, between October 2008 and April 2009, the general manager sent her over 50 inappropriate text messages, including requests for sexual consideration and descriptions of sexual acts that he wanted to perform on her. The general manager allegedly left similarly inappropriate notes on her paychecks and repeatedly asked her to spend time with him outside of work.

The general manager's alleged harassment also included touching and in one instance, he approached Tillbery from behind and began rubbing her shoulder saying, “You deserve to be treated better. Do you know how beautiful you are?” He then apparently grabbed each side of her face with his hands and attempted to forcibly kiss her while saying, “Just give me a kiss.”

Later in the spring of 2009, the general manager allegedly hung up a rag doll with blond hair wearing a bikini in the kitchen at the yacht club. Tillbery has blond hair and, along with the doll, the general manager apparently posted a sign that read, “Vikalicious.” When another employee approached the general manager about the doll, he allegedly responded, “It's Vicky,” and “I can do what I want.”

Additional Harassment

Tillbery also alleged in her lawsuit that a yacht club board member also began harassing her in November 2008. The board member allegedly offered Tillbery money if she would have sex with him. Tillbery claimed that he made the offer two or three times per week and also told Tillbery that, “My wife is not able to satisfy me and I think you would be the one that could if you know what I mean.”

The board member added that, “I know you need the money because I always see you working all the time. So if I give you $500 would you sleep with me?” On one occasion in April 2009, the board member apparently came to Tillbery's home claiming that he wanted a haircut. Tillbery asked him to leave, which, eventually, he did. Tillbery claims that she told the general manager of the board member's advances toward her on at least three occasions, but that there was no informal or formal sexual harassment policy in place at the yacht club. Unable to stand the harassment any longer, Tillbery submitted her resignation in writing on Feb. 18, 2009. The general manager allegedly promised that the harassment would stop if she would agree to withdraw her resignation, which she reluctantly did.

Contacting the EEOC

Eventually, Tillbery contacted the EEOC about filing an intake questionnaire on April 22, 2009. A notice of Tillbery's charge, dated May 7, 2009, was sent to the yacht club and she filled out another questionnaire on May 4, 2009. Tillbery signed a formal EEOC Charge of Discrimination on June 27, 2009. By this time, Tillbery had hired an attorney who apparently sent a letter to the yacht club requesting that the general manager and the board member cease and desist from their sexual harassment of Tillbery.

In May 2009, Tillbery went to the Queen Anne's County Sheriff's Department. As a result, the Sheriff's Department pursued criminal charges against the board member, who was later convicted of solicitation for prostitution. The board member agreed to stay away from Tillbery, resign from the board and relinquish his membership from the yacht club.

Retaliatory Conduct

Tillbery alleged that in May 2009, immediately after she filed charges with the EEOC and the Sheriff's Department, she became the victim of retaliation. The general manager allegedly told her that she could no longer arrive at work at 4 p.m. to perform her setup duties ' therefore forcing her to perform them during the time that she could have been waiting tables and earning tips. On May 18, 2009, Tillbery also received a letter from the yacht club's attorney complaining about a performance issue. Tillbery claims that the letter was the only negative feedback she ever received during her tenure at the yacht club.

On May 19, 2009, Tillbery, through her attorney, sent another letter to the yacht club, complaining about the retaliation by the general manager. According to Tillbery, the retaliation did not stop, prompting several additional letters from Tillbery's counsel to the yacht club complaining about the retaliatory conduct. On Aug. 6, 2009, the EEOC notified Tillbery that it had dismissed her charge of discrimination as untimely.

The Suit

On Nov. 6 of that year, Tillbery filed a lawsuit in federal court against the yacht club, alleging sexual harassment in violation of Title VII, negligent retention and supervision, intentional and infliction of emotional distress, and retaliation.

The yacht club moved to dismiss Tillbery's claims on the grounds that she had failed to exhaust her administrative remedies with regard to her Title VII claims. According to the yacht club, Tillbery's EEOC charge was untimely. The court agreed, noting that before Tillbery could file suit under Title VII, she was required to file a timely charge of discrimination with the EEOC. According to the court, the EEOC charge limits the scope of any later judicial complaint. Moreover, it must be filed within 180 days of the alleged unlawful employment practice or, as in Maryland, a deferred state, 300 days. As the court found, the timeliness requirements for filing discrimination claims are strictly enforced.

In this case, Tillbery first submitted an EEOC intake questionnaire online on April 22, 2009. She had submitted a nearly identical handwritten intake questionnaire on May 4, 2009, and signed a formal EEOC charge under penalty of perjury on June 27, 2009. Although Tillbery's judicial complaint alleged that she was sexually harassed by the general manager and the board member beginning in the fall of 2008, her formal EEOC charge stated that the earliest and latest dates of discrimination were July 1, 2006. Similarly, the narrative portion of her charge stated that when she was initially hired by the yacht club on July 1, 2006, she was subjected to sexual harassment by the general manager.

Tillbery did not check the “continuing action” box on the charge and the only date with regard to discriminatory activity indicated on Tillbery's previous two EEOC intake questionnaires was “7/01/2006.” Just as Tillbery's formal charge failed to allege any continuing action, the narrative portions of her questionnaire also failed to indicate that the activity of which she complained was ongoing. As the court reasoned, even under the extended 300-day-time-limit, discriminatory acts taking place on July 1, 2006, would have been untimely by June 27, 2009, when Tillbery filed her formal EEOC charge. They would also have been untimely by April 22, 2009, when Tillbery first filled out an EEOC questionnaire online.

In response to the yacht club's motion, Tillbery claimed that the July 1, 2006, date in the EEOC charge was merely a clerical error by the EEOC representative who drafted the form and that the facts alleged in her judicial complaint occurred within the 300 days of June 27, 2009. As the court noted, the July 1, 2006, date was probably incorrect, as the general manager was not hired at the yacht club until July 2008. Any clerical error, however, was made not only by the EEOC representative, but also by Tillbery herself on two separate occasions when in her EEOC intake questionnaires she continued to rely on the July 1, 2006, date as the only date of alleged discriminatory activity. Moreover, Tillbery was represented by counsel at the time, signed the formal EEOC charge under the penalties of perjury, despite its apparent inaccuracy and failed to later amend the charge to correct the error.

Although Tillbery maintained that the apparent error in her EEOC charge was insignificant, the court disagreed. According to the court, the requirement that a claimant inform the EEOC of the dates of the alleged discriminatory activity is not merely a technicality. Rather, such information notifies the agency of the scope of its investigation and ultimately the scope of any subsequent lawsuit.

The Ruling

Here, the court found that the EEOC did not undertake and could not have undertaken a detailed investigation of Tillbery's claims because all of the documents she submitted to the agency stated that she was sexually harassed only on July 1, 2006, leaving the agency to conclude that her allegations were untimely. Although a claimant may be found to have exhausted her administrative remedies if a reasonable investigation of her administrative charge would have uncovered the factual allegations set forth in formal litigation, that was not the case here. Neither the questionnaire she completed nor the narrative portions of her formal EEOC charge alerted the agency to the possibility that the alleged harassment was ongoing or occurred on a date other than July 1, 2006.

As a result of this clerical error, the scope of the EEOC's investigation was limited to the date of the alleged harassment that on its face was time-barred. Since Tillbery's federal court complaint exceeded the scope of her administrative EEOC charge, her lawsuit was dismissed.

The court also found that Tillbery's Title VII retaliation claim should also be dismissed. Although in certain circumstances a retaliation claim may be raised the first time in federal court, in this case, that could not occur because Tillbery's initial EEOC charge was time-barred. Since the initial claim was untimely, Tillbery's retaliation claim could not “relate back” to that untimely filing. Because the court did not have federal court jurisdiction to consider Tillbery's Title VII claims, her state law claims were dismissed. Tillbery could re-file those state law claims in state court, assuming she complied with the applicable state law statute of limitations for such claims.

Bottom Line

This case dramatically demonstrates the need for all parties involved in a discrimination claim to review carefully the specific language in the charge of discrimination and the intake questionnaire. Here, for whatever reason, an incorrect date was inserted in the initial paperwork and no one discovered it until it was too late. Moreover, although it did appear to be simply a “clerical error,” it was an error of major significance, resulting in the dismissal of Tillbery's sexual harassment and retaliation claims under Title VII.

This decision should serve as a warning for all to carefully review the contents of the intake questionnaire and the charge of discrimination to make sure that it complies with all of the necessary time requirements. Failure to do so could result in the dismissal of an otherwise meritorious claim. (Tillbery v. Kent Island Yacht Club, Inc., Civil Action No. CCB-09-2956, DCMD, June 4, 2010.)

Kevin McCormick, a member of this newsletter's Board of Editors, is a Partner in the Baltimore office of Whiteford Taylor Preston, LLP. He provides advice and counsel to public and private employers on all phases of the employment relationship.

As many employers know, before any litigation can be filed in court, the employee must first file a timely charge of discrimination with the EEOC or appropriate state or local agency. In Maryland, like many other deferral states, the employee generally has 300 days from the date of the alleged improper action to file such a charge. If the charge is filed beyond the 300-day period, the charge would be untimely and bar any subsequent court action concerning those claims. A recent decision from the Federal District Court in Maryland highlights the need for an employee to meet these time requirements or face dismissal of the claims.

Background Facts

Kent Island Yacht Club (the Yacht Club) is a private club located in Maryland that hosts a marina, club house and restaurant for its patrons. In July 2006, Victoria Tillbery began working at the yacht club as a waitress and a bartender.

Tillbery alleged in her lawsuit that she became a victim of sexual harassment in the fall of 2008, after the yacht club hired a new general manager in July of that year. The new general manager was Tillbery's direct supervisor and, according to Tillbery, sexually harassed her on numerous occasions. Tillbery further alleges that beginning in November 2008, the yacht club's Rear Commodore and board member also began harassing her. According to Tillbery's lawsuit, between October 2008 and April 2009, the general manager sent her over 50 inappropriate text messages, including requests for sexual consideration and descriptions of sexual acts that he wanted to perform on her. The general manager allegedly left similarly inappropriate notes on her paychecks and repeatedly asked her to spend time with him outside of work.

The general manager's alleged harassment also included touching and in one instance, he approached Tillbery from behind and began rubbing her shoulder saying, “You deserve to be treated better. Do you know how beautiful you are?” He then apparently grabbed each side of her face with his hands and attempted to forcibly kiss her while saying, “Just give me a kiss.”

Later in the spring of 2009, the general manager allegedly hung up a rag doll with blond hair wearing a bikini in the kitchen at the yacht club. Tillbery has blond hair and, along with the doll, the general manager apparently posted a sign that read, “Vikalicious.” When another employee approached the general manager about the doll, he allegedly responded, “It's Vicky,” and “I can do what I want.”

Additional Harassment

Tillbery also alleged in her lawsuit that a yacht club board member also began harassing her in November 2008. The board member allegedly offered Tillbery money if she would have sex with him. Tillbery claimed that he made the offer two or three times per week and also told Tillbery that, “My wife is not able to satisfy me and I think you would be the one that could if you know what I mean.”

The board member added that, “I know you need the money because I always see you working all the time. So if I give you $500 would you sleep with me?” On one occasion in April 2009, the board member apparently came to Tillbery's home claiming that he wanted a haircut. Tillbery asked him to leave, which, eventually, he did. Tillbery claims that she told the general manager of the board member's advances toward her on at least three occasions, but that there was no informal or formal sexual harassment policy in place at the yacht club. Unable to stand the harassment any longer, Tillbery submitted her resignation in writing on Feb. 18, 2009. The general manager allegedly promised that the harassment would stop if she would agree to withdraw her resignation, which she reluctantly did.

Contacting the EEOC

Eventually, Tillbery contacted the EEOC about filing an intake questionnaire on April 22, 2009. A notice of Tillbery's charge, dated May 7, 2009, was sent to the yacht club and she filled out another questionnaire on May 4, 2009. Tillbery signed a formal EEOC Charge of Discrimination on June 27, 2009. By this time, Tillbery had hired an attorney who apparently sent a letter to the yacht club requesting that the general manager and the board member cease and desist from their sexual harassment of Tillbery.

In May 2009, Tillbery went to the Queen Anne's County Sheriff's Department. As a result, the Sheriff's Department pursued criminal charges against the board member, who was later convicted of solicitation for prostitution. The board member agreed to stay away from Tillbery, resign from the board and relinquish his membership from the yacht club.

Retaliatory Conduct

Tillbery alleged that in May 2009, immediately after she filed charges with the EEOC and the Sheriff's Department, she became the victim of retaliation. The general manager allegedly told her that she could no longer arrive at work at 4 p.m. to perform her setup duties ' therefore forcing her to perform them during the time that she could have been waiting tables and earning tips. On May 18, 2009, Tillbery also received a letter from the yacht club's attorney complaining about a performance issue. Tillbery claims that the letter was the only negative feedback she ever received during her tenure at the yacht club.

On May 19, 2009, Tillbery, through her attorney, sent another letter to the yacht club, complaining about the retaliation by the general manager. According to Tillbery, the retaliation did not stop, prompting several additional letters from Tillbery's counsel to the yacht club complaining about the retaliatory conduct. On Aug. 6, 2009, the EEOC notified Tillbery that it had dismissed her charge of discrimination as untimely.

The Suit

On Nov. 6 of that year, Tillbery filed a lawsuit in federal court against the yacht club, alleging sexual harassment in violation of Title VII, negligent retention and supervision, intentional and infliction of emotional distress, and retaliation.

The yacht club moved to dismiss Tillbery's claims on the grounds that she had failed to exhaust her administrative remedies with regard to her Title VII claims. According to the yacht club, Tillbery's EEOC charge was untimely. The court agreed, noting that before Tillbery could file suit under Title VII, she was required to file a timely charge of discrimination with the EEOC. According to the court, the EEOC charge limits the scope of any later judicial complaint. Moreover, it must be filed within 180 days of the alleged unlawful employment practice or, as in Maryland, a deferred state, 300 days. As the court found, the timeliness requirements for filing discrimination claims are strictly enforced.

In this case, Tillbery first submitted an EEOC intake questionnaire online on April 22, 2009. She had submitted a nearly identical handwritten intake questionnaire on May 4, 2009, and signed a formal EEOC charge under penalty of perjury on June 27, 2009. Although Tillbery's judicial complaint alleged that she was sexually harassed by the general manager and the board member beginning in the fall of 2008, her formal EEOC charge stated that the earliest and latest dates of discrimination were July 1, 2006. Similarly, the narrative portion of her charge stated that when she was initially hired by the yacht club on July 1, 2006, she was subjected to sexual harassment by the general manager.

Tillbery did not check the “continuing action” box on the charge and the only date with regard to discriminatory activity indicated on Tillbery's previous two EEOC intake questionnaires was “7/01/2006.” Just as Tillbery's formal charge failed to allege any continuing action, the narrative portions of her questionnaire also failed to indicate that the activity of which she complained was ongoing. As the court reasoned, even under the extended 300-day-time-limit, discriminatory acts taking place on July 1, 2006, would have been untimely by June 27, 2009, when Tillbery filed her formal EEOC charge. They would also have been untimely by April 22, 2009, when Tillbery first filled out an EEOC questionnaire online.

In response to the yacht club's motion, Tillbery claimed that the July 1, 2006, date in the EEOC charge was merely a clerical error by the EEOC representative who drafted the form and that the facts alleged in her judicial complaint occurred within the 300 days of June 27, 2009. As the court noted, the July 1, 2006, date was probably incorrect, as the general manager was not hired at the yacht club until July 2008. Any clerical error, however, was made not only by the EEOC representative, but also by Tillbery herself on two separate occasions when in her EEOC intake questionnaires she continued to rely on the July 1, 2006, date as the only date of alleged discriminatory activity. Moreover, Tillbery was represented by counsel at the time, signed the formal EEOC charge under the penalties of perjury, despite its apparent inaccuracy and failed to later amend the charge to correct the error.

Although Tillbery maintained that the apparent error in her EEOC charge was insignificant, the court disagreed. According to the court, the requirement that a claimant inform the EEOC of the dates of the alleged discriminatory activity is not merely a technicality. Rather, such information notifies the agency of the scope of its investigation and ultimately the scope of any subsequent lawsuit.

The Ruling

Here, the court found that the EEOC did not undertake and could not have undertaken a detailed investigation of Tillbery's claims because all of the documents she submitted to the agency stated that she was sexually harassed only on July 1, 2006, leaving the agency to conclude that her allegations were untimely. Although a claimant may be found to have exhausted her administrative remedies if a reasonable investigation of her administrative charge would have uncovered the factual allegations set forth in formal litigation, that was not the case here. Neither the questionnaire she completed nor the narrative portions of her formal EEOC charge alerted the agency to the possibility that the alleged harassment was ongoing or occurred on a date other than July 1, 2006.

As a result of this clerical error, the scope of the EEOC's investigation was limited to the date of the alleged harassment that on its face was time-barred. Since Tillbery's federal court complaint exceeded the scope of her administrative EEOC charge, her lawsuit was dismissed.

The court also found that Tillbery's Title VII retaliation claim should also be dismissed. Although in certain circumstances a retaliation claim may be raised the first time in federal court, in this case, that could not occur because Tillbery's initial EEOC charge was time-barred. Since the initial claim was untimely, Tillbery's retaliation claim could not “relate back” to that untimely filing. Because the court did not have federal court jurisdiction to consider Tillbery's Title VII claims, her state law claims were dismissed. Tillbery could re-file those state law claims in state court, assuming she complied with the applicable state law statute of limitations for such claims.

Bottom Line

This case dramatically demonstrates the need for all parties involved in a discrimination claim to review carefully the specific language in the charge of discrimination and the intake questionnaire. Here, for whatever reason, an incorrect date was inserted in the initial paperwork and no one discovered it until it was too late. Moreover, although it did appear to be simply a “clerical error,” it was an error of major significance, resulting in the dismissal of Tillbery's sexual harassment and retaliation claims under Title VII.

This decision should serve as a warning for all to carefully review the contents of the intake questionnaire and the charge of discrimination to make sure that it complies with all of the necessary time requirements. Failure to do so could result in the dismissal of an otherwise meritorious claim. (Tillbery v. Kent Island Yacht Club, Inc., Civil Action No. CCB-09-2956, DCMD, June 4, 2010.)

Kevin McCormick, a member of this newsletter's Board of Editors, is a Partner in the Baltimore office of Whiteford Taylor Preston, LLP. He provides advice and counsel to public and private employers on all phases of the employment relationship.