8th Circuit: Worker Was Fired for Failing to Meet Job Expectations

By Sean S. Kelly September 23, 2020
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​A worker who made vulgar comments and distributed an offensive letter was terminated for failing to meet her employer's job expectations, and not because of sex discrimination, sexual harassment or retaliation, according to the 8th U.S. Circuit Court of Appeals.

The plaintiff worked for Concrete Equipment Co. (Con-E-Co), a Nebraska corporation that manufactures concrete batch plants and mixers. She was reprimanded several times for using sexualized language in violation of the company's harassment policy. She also claimed that she experienced sexually charged behavior directed at her several times, including an incident where a male employee attempted to grab her breast.

In March 2015, the plaintiff witnessed a foreman reprimanding a Black employee for using a vending machine on work time. The plaintiff expressed concerns to at least two foremen that the co-worker was reprimanded because of his race. Shortly after speaking with the foremen, the plaintiff wrote a letter to both containing an offensive picture and profane language. The letter contained no clear charge of race or sex discrimination.

After the plaintiff delivered the letter, Con-E-Co's human resource manager notified her that the letter was deemed offensive under the company's harassment policy and suspended her pending an investigation. The company later terminated her.

The plaintiff then made a complaint to Con-E-Co's parent company detailing every alleged incident of harassment and discrimination she experienced during her employment. When the parent company determined that her termination was justified, she filed a lawsuit claiming sex discrimination, sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964 and Nebraska state law. The district court granted summary judgment in favor of Con-E-Co on all claims.

On appeal, the court held that the plaintiff could not demonstrate that she met Con-E-Co's legitimate job expectations or that the company treated her differently than similarly situated male employees. Her repeated and undisputed violation of Con-E-Co's harassment policy justified termination. Nor could she identify similarly situated male co-workers who, like her, were reported by other employees for multiple incidents of misconduct. For these reasons, the plaintiff failed to make a case of sex discrimination.

As for her sexual-harassment claim, Con-E-Co's attorney essentially conceded that the conduct of the plaintiff's co-workers toward her was objectively harassing. However, the plaintiff could not demonstrate that she subjectively perceived the alleged harassment as abusive, the 8th Circuit determined. On the contrary, she said during the post-termination investigation that she "told all the guys it was like having a bunch of brothers and uncles I never wanted. … I was rarely offended." Unless she could provide evidence of conduct that was both subjectively and objectively hostile, the court held, she could not prove a claim of sexual harassment.

As a final matter, the court found no evidence that Con-E-Co retaliated against the plaintiff for her complaints of race and sex discrimination. The plaintiff argued that she was fired in retaliation for her letter reporting race discrimination to two foremen and for her prior reports of sex discrimination. She directed the court to the close timing of her letter regarding the vending machine incident and her termination.

The court held that an argument based on such proximity in timing is undermined when the allegedly retaliatory motive coincides with the nonretaliatory motive. In this case, the letter allegedly reporting race discrimination was also offensive enough to justify termination. In the absence of retaliatory measures taken against her for her earlier complaints of sex discrimination, the plaintiff failed to present evidence of retaliation.

The court affirmed summary judgment for Con-E-Co.

Gibson v. Concrete Equipment Co. Inc., 8th Cir., No. 18-3009 (June 3, 2020), petition for rehearing en banc denied (July 27, 2020).

Professional Pointer: Employers should maintain a record of instances of misconduct committed by employees. In this case, the fact that the plaintiff violated the company's harassment policy, as demonstrated by complaints from her co-workers, helped the company prevail.

Sean S. Kelly is an attorney with Ross, Brittain & Schonberg Co. LPA, the Worklaw® Network member firm in Cleveland.

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