Broska v. Henderson

¶1The lead opinion acknowledges that the district court applied an incorrect legal standard but does not feel a remand is necessary.1 I respectfully disagree. It is not up to an appellate court to assess the quality of the evidence under the correct legal standard in the first instance, as the lead opinion does here. Moreover, in finding that Broska failed to make out a prima facie case for retaliation based on a theory of retaliatory harassment, the lead opinion concludes that Broska’s “allegations can only be conceptualized as claims of minor annoyance, not severe or pervasive harassment.” However, not noticed by the lead opinion is the evidence Broska submitted — his affidavit as well as the affidavits of several co-workers who nearly uniformly state that Broska was subjected to intensive supervision unlike any other carrier, that the level of supervision did not take place in Broska’s absence, and that the intensive supervision ceased about the time Broska filed suit. Whether or not this evidence is sufficient to support a claim of retaliation based on a theory of retaliatory harassment is a matter for the district court to address in the first instance under the correct legal standard, and therefore, in my view, a remand is necessary.