Vulgar Comment About Promotion Decision Was Not Protected

 

By Jeffrey Rhodes April 3, 2019
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​An employee who was fired after questioning a female co-worker's potential promotion with a vulgar, disparaging remark lost her retaliation, free-speech, gender-discrimination and disability-discrimination claims before the 7th U.S. Circuit Court of Appeals.

The plaintiff worked for the Indiana Department of Insurance (IDOI). Prior to her hire, she worked in an Indiana prison in 1999. In that position, she learned that an inmate wrote a threatening entry about her in his diary. She suffered emotional distress and left her job, seeking medical treatment for the trauma.

In 2006, she began working at IDOI as a clerical assistant. She received good reviews and promotions and was not disciplined. In 2009, IDOI hired a formerly incarcerated employee who was recently released. This scared the plaintiff, and she was soon thereafter diagnosed with depression, bipolar disorder and post-traumatic stress disorder. She took Family and Medical Leave Act (FMLA) leave.

When the plaintiff returned, she discussed her condition with her female supervisor and asked her to comment on any changes in her behavior. The plaintiff also told other employees about the diagnosis and asked them not to startle her, be loud or approach suddenly. They complied, and she received these accommodations for disabilities related to her mental health for several years.

In 2010, the employee began carpooling with two female co-workers, who were sisters-in-law. By 2013, one of the co-workers sometimes supervised the plaintiff. That year, the plaintiff and another female employee applied for a position within IDOI. As the plaintiff left work one day with her female co-workers, she commented on the competitor for the position, stating, "I'm sure she'll get it because … it's who you know and who you blow." The co-workers told the plaintiff that they disapproved of this comment but did not report it until several months later.

In May 2013, the plaintiff sought clarification from one of the co-workers about a redistribution of job duties. The co-worker went to her sister-in-law's cubicle and said about the plaintiff, "I don't know what I'm going to do if I don't string her up by the end of the week." Overhearing the comment as she walked by, the plaintiff asked, "Are you talking about me?" The co-worker turned, stretched her arms out, leaned into the plaintiff, made a choking motion and said, "I could just strangle you."

This startled the plaintiff, and a heated exchange ensued. In that exchange, the plaintiff mentioned that her female co-worker took Xanax when upset.

The plaintiff told her supervisor about the incident but did not want a formal investigation. The supervisor notified the HR director and the state personnel department (SPD). The SPD investigated and interviewed the plaintiff and others, including the co-worker, and learned of the "blow" comment. The investigator then met with the IDOI commissioner and conveyed the facts. The IDOI commissioner decided to issue a written reprimand to the co-worker for her inappropriate conduct during the cubicle episode. He decided to terminate the plaintiff's employment for the "blow" comment and her participation in the cubicle incident.

The plaintiff filed a claim with the U.S. Equal Employment Opportunity Commission and pursued administrative relief under Indiana law. The plaintiff also filed a federal court complaint.

The plaintiff asserted three counts against Indiana and the IDOI commissioner for disability discrimination under the Americans with Disabilities Act (ADA) and Indiana disability laws; gender discrimination under Title VII of the Civil Rights Act of 1964 (Title VII); and retaliation under the ADA, Title VII, and the First Amendment to the U.S. and Indiana constitutions. The administrative claim was stayed pending the resolution of the federal court case.

[SHRM members-only toolkit: Accommodating Employees' Disabilities]

The case proceeded through discovery, and the plaintiff claimed that she did not intend the term "blow" in a sexual sense, but instead meant merely "blowing hot air." The defendants moved for summary judgment on the plaintiff's retaliation claims.

The court granted the motion, finding that the plaintiff had not shown that she had complained about gender discrimination and did not believe that the employer actually engaged in sexual misconduct. The court ruled that the IDOI could lawfully discipline the plaintiff for her comment, and the 7th Circuit upheld this result on appeal.

Scheidler v. State of Indiana, 7th Cir., No. 1:14-cv-937-WTL-DML (Jan. 25, 2019).

Professional Pointer: Employers need not treat employee innuendo about staffing decisions as a protected complaint of discrimination, particularly when such comments are themselves potentially disparaging to co-workers based on gender or other protected characteristics.

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

[Visit SHRM's resource page on the Americans with Disabilities Act.]

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