Employee Fired Soon After Reporting Harassment Can Sue

By Jeffrey Rhodes December 28, 2018

A clinical manager for a medical products company who reported a sales manager for sexual harassment and was then fired for previous misconduct at a company retreat had a viable retaliation claim, the 7th U.S. Circuit Court of Appeals ruled.

In 2010, the plaintiff was hired as the corporate accounts director by Stryker Sales Corp., a medical equipment manufacturer and retailer. The plaintiff repeatedly failed to submit her expense reports and was demoted to clinical manager.

In June 2014, the plaintiff learned from co-workers that one of Stryker's sales managers had sexually harassed a subordinate. In response, the plaintiff filed a formal harassment complaint with Stryker's director of HR. Stryker investigated the complaint and fired the sales manager yet paid him a substantial severance package.

In August 2014, after the sales manager was fired, Stryker began investigating the plaintiff. The focus was on an incident that occurred six weeks earlier at a team meeting in Vail, Colo. One evening, the plaintiff had taken photographs of the female CEO of one of Stryker's vendors in an intoxicated state. The plaintiff had then shared the photographs with co-workers. During the investigation, the plaintiff denied taking any compromising videos or photographs of the vendor. She maintained that she had escorted the vendor up to her hotel room out of concern for her safety.

The HR director investigated the incident and notified the plaintiff of her conclusions. Stryker decided that the plaintiff should be fired because taking photographs of a valued partner while intoxicated was unacceptable. The termination letter stated that the plaintiff had engaged in "inappropriate conduct and poor judgment" and that her conduct violated Stryker's employment policies. Unlike the sales manager she had complained about, she was not offered a severance package.

The plaintiff filed a charge of retaliation with the Equal Employment Opportunity Commission (EEOC). The plaintiff claimed that, on the night she took the photos, she showed them to her supervisor at the hotel bar in Vail. Stryker admitted this in its written response to the EEOC charge, alleging that the supervisor saw them and was unamused, and told the plaintiff to delete the photographs.

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

The plaintiff then sued Stryker under Title VII of the Civil Rights Act of 1964 for retaliating against her based on the internal complaint she had filed. In the lawsuit, the supervisor denied seeing the photographs that night in Vail. He testified in his deposition that he recalled hearing about the incident sometime after the team meeting. He also testified that he told the HR director about the photographs before the formal investigation had commenced.

Stryker moved for summary judgment on the plaintiff's claims, which was granted by the trial court. The plaintiff appealed, and the appellate court found that the plaintiff had presented sufficient evidence of pretext to support her claim.

Under recent Title VII precedent, an employee can show that an employer's basis for termination is false or pretext by showing that its reasons for termination changed after discharge. If the plaintiff could prove that her supervisor knew about her conduct at the time of the Vail meeting, this could show that the company was notified of it then and did not think it worthy of discipline. While Stryker claimed that it fired the plaintiff after the harassment complaint because it had just discovered her misconduct, that claim was undercut by its own EEOC filing.

The plaintiff also argued that Stryker's unwillingness to pay her severance but paid the alleged harasser severance also showed pretext, but the court disagreed. Nevertheless, the court ruled that a jury could credit the plaintiff's evidence that Stryker was not being honest about when it discovered her conduct. Because the jury could believe the plaintiff and find that Stryker's reasons were a pretext for discrimination, the court reversed the district court's dismissal of the retaliation claim and ordered that the claim proceed to trial.

Donley v. Stryker Sales Corp., 7th Cir., No. 17-1195 (Oct. 15, 2018).

Professional Pointer: Discipline for an employee's conduct should occur close in time to the misconduct at issue. If the employer delays such discipline until after the employee complains of other workers or conditions in the workplace, the employee may have a viable retaliation claim.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.

[Visit SHRM's resource page on workplace harassment.]



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