Labor & Employment Law Daily Direct evidence indicated highly paid female executive lost accounts based solely on her sex
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Wednesday, February 5, 2020

Direct evidence indicated highly paid female executive lost accounts based solely on her sex

By Marjorie Johnson, J.D.

The senior operations manager claimed that her supervisor told her that he had to take away her accounts because male leadership in the financial services company believed she was “making too much money as a female” and that she was making “enough” money, considering that she was female.

A jury will decide whether a female executive had client accounts taken away from her because the new male CEO and other Indian leaders thought that she made too much money as a female, whether she was discharged as retaliation within 48 hours of her lawyer’s letter confirming her imminent EEOC charge, whether management’s statements to her colleagues and clients surrounding the circumstances of her termination constituted defamation per se, and whether the employer breached an oral contract by failing to pay her owed commissions. While a federal district court in Florida allowed most of her Title VII and state law claims to advance to trial, it granted the employer’s motion for summary judgment on her hostile work environment and Equal Pay Act claims (Williamson v. Digital Risk, LLC, January 28, 2020, Presnell, G.).

New leadership degrades women. In 2014, about four years after the senior operations manager was hired, a new male CEO came aboard who allegedly treated her poorly because she was female. He then upped the ante after learning that he was compensated less than her. Along with placing a “spy” right outside of her office door, he and other leaders harassed and intimidated the women in the office, such as refusing to make eye contact with them or shake their hands and berating them with raised voices during meetings.

CEO upset about pay. The employee’s manager later told her that the CEO treated her poorly because she was a “female making more money than him,” and had “a very big problem with that.” He also told her that “the Indians” did not like that a woman would make as much money as she made. The manager claimed he would protect her, but reassigned some of her accounts to her male colleagues with the rationale that she made too much money compared to the men.

Discrimination increases. After she became engaged, the discrimination increased. She was given difficult travel schedules, excluded from important meetings, given limited opportunities to obtain client accounts, and not allowed to work remotely. She was also forced to work with a client who allegedly groped her and repeatedly propositioned her for oral sex, even after she complained about him.

In 2016 and 2017, the employer stopped allocating resources to her and any clients that she brought in were reassigned to her male colleagues. Her manager explained that this was to remove the “target” on her back for making more money and that she was making “enough” considering that she was female. She was also falsely accused of saying “shush” during a phone call. Though she formally complained about discrimination, no action was taken, and her manager warned her not to hire a lawyer since “the Indians would view it as an attack” and “her career would be over.”

Terminated after warns of EEOC charge. In August 2017, her manager told her that he could no longer protect her and started taking away her remaining accounts, which reduced her commission-based income and made it impossible to meet her sales goals. On January 10, 2018, her attorney advised the employer in writing that she was going to file an EEOC complaint. Within 48 hours, she was terminated and denied cash-out of her fully vested stock options as well as earned commissions. Over the next couple of weeks, management told her colleagues that she was terminated for violating company policy. Her manager also allegedly told her clients that she was no longer working there since she had business failures and was not performing up to par.

Direct evidence of bias. The employer was not entitled to summary judgment on the employee’s gender discrimination claims since her manager’s alleged statement that he was taking away her accounts because leadership believed she was “making too much money as a female” constituted direct evidence. She claimed that he reiterated this repeatedly and continued to take away her accounts up until her termination. Since this evidence indicated that he took her accounts away solely on the basis of her sex. There was no need for the McDonnell Douglas analysis and her claims of intentional discrimination would go to a jury.

Pretext for retaliation. Her retaliation claims also advanced since she cast sufficient doubt on the employer’s contention that she was fired because she forwarded confidential and proprietary information to her personal e-mail account. A jury could find pretext based on multiple coworkers’ testimony that emailing documents to oneself was a common practice and evidence that the employee, shortly after confirming her EEOC charge, was the only individual disciplined for doing so. Moreover, after her firing other female employees were purportedly told that they would be “fired on the spot” if they ever filed a discrimination case.

Defamation per se. The court also rejected the employer’s contention that management’s statements to others regarding her termination were not defamatory per se. Multiple coworkers testified that they thought she must have done something terribly unethical based on what they were told and such statements “would certainly tend to injure her trade or profession.” Triable issues also existed as to both the truth of and the motive behind the statements, as well as whether the employer was entitled to the qualified privilege defense.

Breach of contract. Her claim for breach of oral contract also advanced since it was not barred by the statute of frauds and a reasonable jury could that the parties entered into a contract for commissions to be paid to her which the employer breached.

HWE and EPA claims tossed. However, her HWE claim failed since the incidents that she complained of “fit far better” within the confines of her other Title VII claims. Her Equal Pay Act claim was also tossed since she failed to demonstrate that any male colleagues were actually paid more than her.

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