Termination After Protected Activity Puts Motive for Firing into Question

​An employee who had been repeatedly reported for inappropriate workplace behavior but who was not fired until shortly after she complained of sexual harassment by her supervisor created sufficient doubt about the real reasons for her termination to allow her retaliation claim to go to trial, the 8th U.S. Circuit Court of Appeals ruled.

The plaintiff was hired by the Department of the Army as a general supply specialist in January 2013 with a one-year probationary period. In the summer of 2013, her immediate supervisor allegedly directed conduct toward her that made her feel uncomfortable.

The first incident occurred when she and another female co-worker were alone with the supervisor, who allegedly stood in front of their cubicles and told them they could not leave without giving him a hug. Both women complied without protest, but neither wanted to hug him.

The second incident took place at a party at the home of the plaintiff's second-level manager. This time, the supervisor allegedly dropped a saltshaker down the front of the plaintiff's shirt.

The plaintiff talked to an Equal Employment Opportunity (EEO) assistant about the second incident but did not file a formal report. The EEO assistant, however, informed his manager about the incident. Although the plaintiff had not filed an EEO complaint, the EEO manager informed the plaintiff's manager of the incident and instructed her to conduct an inquiry.

The plaintiff's manager met with her supervisor to inform him of the plaintiff's claims, which he denied. The supervisor accused the plaintiff of causing chaos in the workplace and forwarded to the manager an e-mail he had originally sent her in March detailing an interaction with the plaintiff that had made him uncomfortable. The interaction involved the plaintiff allegedly coming to his office to discuss an affair she had had with another employee and telling him that she was lonely and "horny."

The supervisor also sent a memo listing other allegations against the plaintiff, including that she had rubbed his arm and pressed her breasts against his back while talking to him; that she had performed her work assignments unsatisfactorily; and that other employees had complained about her lashing out at them and causing "drama." This was followed by multiple e-mails recounting other employees' allegations of inappropriate conduct by the plaintiff, such as rubbing the leg of a male employee under the table during a meeting and threatening to hit a co-worker's car after a parking dispute.

The manager scheduled a meeting with the plaintiff, a representative from the Army's sexual-harassment-prevention program and herself. The plaintiff reasserted her allegations regarding the supervisor's behavior at the party but said she did not want to bring a complaint. When the plaintiff asked the manager to ensure she would not be retaliated against, the manager told her there would be no retaliation but to tell her supervisor that "she was sorry that this ever reached this level."

On the following day, the unit's team leader commented negatively to the plaintiff about a weekly assignment she had failed to perform for several months and verbally counseled the plaintiff.

Meanwhile, an outside investigator brought in to investigate the harassment allegations turned in a report concluding that the saltshaker allegation "was unfounded due to lack of evidence" but that the plaintiff had made sexual contact with her supervisor without his consent by intentionally pressing her breasts against his back. He noted that sworn statements from other employees were "sufficient for the commander to take action regarding the associated misconduct by [the plaintiff]."

The plaintiff sought counseling at the EEO office Dec. 1 regarding her conflicts with co-workers and her perception that she was being retaliated against for reporting sexual harassment. A week later, the plaintiff reported to the EEO office an inappropriate comment she had overheard her supervisor make. The EEO specialist told the manager to counsel the supervisor and other employees involved in the overheard conversation as to why it was inappropriate. The manager terminated the plaintiff's employment a few days later, citing unprofessional and confrontational interactions with co-workers, as well as inappropriate touching of co-workers.

The plaintiff sued the Army, alleging violations of Title VII of the Civil Rights Act of 1964. A federal district court entered summary judgment for the Army on both claims: being subject to a hostile work environment based on sex and retaliation for reporting sexual harassment.

The appellate court affirmed the dismissal of the hostile work environment claim. Although some of the conduct described could contribute to a hostile work environment, the court found that the conduct alleged was not severe or pervasive enough to create an objectively hostile or abusive work environment.

Turning to the retaliation claim, the court held that the plaintiff had established a genuine dispute as to whether the Army's offered reasons for her dismissal were pretextual. First, the plaintiff noted that most of the conduct listed in the termination memo had been known to the manager for months.

However, the manager did not actually terminate her employment until December—eight months after her supervisor had first informed the manager of inappropriate behavior and three months after he had made the additional allegations, but only 10 days after the plaintiff first sought EEO counseling and only three days after she reported the supervisor's inappropriate comments to the EEO office. In this situation, a fact-finder could reasonably infer that the Army would have terminated the plaintiff sooner if accumulated misconduct had been the true motivation for her discharge, the court said.

Further, the court noted that even though both the plaintiff and her supervisor made accusations of sexually inappropriate conduct, the manager looked into only the supervisor's complaints about the plaintiff with no evidence of a comparable investigation into the supervisor's conduct. The court acknowledged that there may have been reasons for this but noted the record did not provide insight into what those reasons may have been. For that reason, the court concluded that the "lopsided" treatment of the respective allegations further supported the plaintiff's argument that her termination was retaliatory. The court reversed summary judgment on the retaliation claim and remanded it for further proceedings.

Hairston v. Wormuth, 8th Cir., No. 20-1806 (July 29, 2021).

Professional Pointer: Even when the stated reasons for firing an employee would serve as a legitimate basis for termination, the fact that a termination occurs several days after an employee engages in protected conduct—such as complaining of sexual harassment—can create sufficient doubt as to motive to keep a retaliation claim alive. Employers should always be aware of the proximity between protected activity and an adverse employment action, even if an employee's disruptive behavior has been well-documented.

Rosemarie Lally, J.D., is a freelance legal writer based in Washington, D.C.