Appellate court allows federal discrimination suit at Allegheny County Jail to continue

A lawsuit by a former Allegheny County Jail captain who alleged he was fired for reporting a superior officer who called his biracial relative “a monkey” can move forward.

The 3rd U.S. Circuit Court of Appeals on Thursday ruled in favor of former Capt. Jeffrey Kengerski, who was fired in November 2015 — seven months after he reported Major Robyn McCall’s behavior.

The county asserts that Kengerski was fired for his mishandling of a sexual harassment complaint, including allegations that he told two subordinate officers to lie on their reports during the investigation.

However, in his lawsuit, Kengerski alleged a Title VII violation — that he was fired in retaliation for reporting McCall’s behavior. Title VII prohibits an employer from retaliating against an employee who reports discrimination.

According to court documents, Kengerski submitted a written complaint to jail administrators against McCall, a white woman, in April 2015. In the complaint, he detailed a conversation in which McCall asked if Kengerski’s grand-niece was Black.

“After learning that (she) was biracial, McCall allegedly responded that Kengerski ‘will be that guy in the store with a little monkey on his hip like … (another jail employee with a biracial child),’” the court summarized.

Kengerski asked McCall not to speak like that about his situation and left the room.

Afterward, Kengerski said that he received several text messages from McCall — most of them memes asserting offensive racial stereotypes, but also with captions on them naming jail employees.

Warden Orlando Harper referred the complaint against McCall to the law department. She was placed on administrative leave in May 2015 and resigned three months later.

In his lawsuit, Kengerski alleged that, after reporting McCall, he was harassed and felt like was in a hostile work environment.

Ultimately, he was fired.

He filed his lawsuit in the Western District of Pennsylvania in August 2017.

Allegheny County filed a motion for summary judgment, alleging that Kengerski could not sustain a claim of retaliation under Title VII. The county argued that it took Kengerski a year before he reported McCall’s conduct, and that his letter to the warden was not protected under the law because he was not opposing any protected activity.

U.S. District Judge J. Nicholas Ranjan agreed.

“The racist comment and texts were inappropriate and offensive, and Mr. Kengerski was, no doubt, right in reporting them,” he wrote in his Jan. 24, 2020, opinion. “But reporting a co-worker’s offensive remarks is not the same as opposing an unlawful employment practice. Because Mr. Kengerski’s complaint had nothing to do with an unlawful employment practice, his claim for retaliation under Title VII fails as a matter of law.”

But the Third Circuit disagreed. The higher court found that the statute protects employees from retaliation when they “reasonably believe” that behavior at work is discriminatory and they “make a good-faith complaint,” the panel wrote.

“For a retaliation claim, a plaintiff need not show that his working environment in hindsight was actually hostile, only that he held an objectively reasonable belief that it was. The difference between these two standards reflects a part of Title VII’s purpose to ‘encourage employees to report harassing conduct before it becomes severe or pervasive.’”

The court’s opinion is the first time the Third Circuit has found that discrimination against an employee because of their association with a person of a different race is is illegal, said Kengerski’s attorney, Maggie Coleman.

“As relevant here, harassment against an employee because he associates with a person of another race, such as a family member, may violate Title VII by creating a hostile work environment,” the court wrote in its 20-page opinion. “Because a reasonable person could believe that the Allegheny County Jail was a hostile work environment for Kengerski, we vacate the district court’s grant of summary judgment.”

The appellate court decision does not necessarily mean that Kengerski will succeed in his lawsuit. Instead, it sends the case back to the district court to determine if he was fired based on his discrimination complaint.

“The opinion sends a clear message to all employees that when they see harassment in the workplace, they should report it, and that the law will protect them if they do,” Coleman said. “The court firmly rejected the county’s argument that McCall’s explicitly racist behavior was no big deal. When a high-level official at the county jail calls a biracial child a ‘monkey,’ it is a big deal.

“When that same official sends sickening, racist text messages to her coworkers, it is a big deal.”