Labor & Employment Law Daily Employee fired for photographing vendor’s drunk CEO revives claim that real motive was sexual harassment complaint
Wednesday, October 17, 2018

Employee fired for photographing vendor’s drunk CEO revives claim that real motive was sexual harassment complaint

By Marjorie Johnson, J.D.

Suspicious timing and inconsistent statements created a triable issue as to whether an employee was terminated in retaliation for filing an internal complaint against a sales manager who had sexually harassed a subordinate, and not because she had taken pictures of a vendor’s intoxicated CEO while at an offsite sales meeting, the Seventh Circuit ruled in reversing the district court’s dismissal of her Title VII retaliation claim on summary judgment. However, the employer’s more favorable treatment of the sexually harassing manager, who was also fired but received a substantial severance, did not support her showing of pretext since he was not similarly situated (Donley v. Stryker Sales Corp., October 15, 2018, Hamilton, D.).

Sexual harassment complaint. The employee, a clinical manager for a medical equipment manufacturer and retailer, learned from a coworker in June 2014 that a regional sales manager had sexually harassed a subordinate. She filed an internal complaint with the HR director, prompting an investigation that resulted in the manager’s termination. He also received a substantial severance package.

Investigated for earlier misconduct. In August 2014, just after the manager’s termination, the company began investigating the employee for alleged misconduct during a team meeting that had taken place six weeks earlier in Vail, Colorado. At the team meeting, she purportedly took pictures of a vendor’s female CEO in an intoxicated state and shared the photos with coworkers. During the investigation, she denied taking any “compromising” photos of the CEO and claimed that she had escorted her to her hotel room out of concern for her safety.

Who knew about what, when? The parties disputed exactly when the photos first came to the attention of the HR director and the employee’s supervisor. The employee said she showed them to her supervisor at the hotel bar on the night she took them. The company’s written response to her EEOC charge stated that she showed them to the supervisor, that he was “unamused,” and that he told her to delete the photos.

In his deposition, however, the supervisor denied that he saw the photos in Vail and instead testified that he heard about them later on. He also testified that he told the HR director about them before the employee’s investigation. In contrast, the HR director claimed that she first learned about them during an exit interview with a departing employee who complained about the plaintiff’s unprofessionalism.

Fired with no severance. In any event, the HR director conferred with the supervisor over the investigation’s results, and they purportedly decided that she should be fired because taking photographs of a valued partner while intoxicated was unacceptable. The termination letter stated that the employee had engaged in “inappropriate conduct and poor judgment” and violated the company’s policies. Unlike the sales manager fired for sexual harassment, she did not receive severance, however.

District court grants SJ. Granting the employer’s motion for summary judgment, the district court concluded that the employee was undisputedly terminated “because of her own drunken conduct in Vail, [company] policies, and its valued relationship with the CEO.” The court deemed it irrelevant when her supervisor learned about the photos since the decision to fire her was made before he knew about her protected activity. Moreover, she was not directly comparable to the fired sales manager who had received a severance package.

Suspicious timeliness, inconsistencies. Reviving the employee’s claim, the Seventh Circuit held that a reasonable jury could find that she was fired in retaliation for her protected Title VII activity since her timeline—which was supported by the record—exposed “inconsistencies and contradictions” between the HR director’s and her supervisor’s accounts of why the company began the investigation that ended with her discharge. A reasonable jury could interpret the suspicious timing as evidence that one or both decisionmakers initially found her actions in the Vail incident to be tolerable, and they decided only later—after her internal complaint—to use that incident as a pretext to fire her for retaliatory reasons.

Contradictory statement to EEOC. The appeals court squarely rejected the employer’s assertion that the EEOC statement should not be admissible as evidence against it, pointing out that “an employer’s shifting factual accounts and explanations for an adverse employment decision can often support a reasonable inference that the facts are in dispute and that an employer’s stated reason was not the real reason for its decision.” The court also rejected the company’s contention that the timing of its investigation into her misconduct was immaterial since her supervisor was unaware of her sexual harassment complaint and therefore could not have fired her with retaliatory animus. This argument failed to acknowledge the involvement of the HR director, who appeared to have launched the investigation into the employee’s alleged misconduct about a day after resolving the sexual harassment complaint.

Jury to decide who to believe. The HR director also drafted the employee’s termination letter after consulting with the supervisor about the investigation. Therefore, even if the supervisor did not know about the sexual harassment complaint, the HR director did, and she played a meaningful role in the decision to fire the employee. The dispute over when the HR director learned about the employee’s actions in Vail might therefore help convince a reasonable jury that she harbored retaliatory animus.

Harassing manager not similarly situated. However, the employee could not rely on the more favorable treatment of the fired sales manager to show pretext. He reported to a different supervisor, occupied a more senior position, and was subject to different standards. Therefore, without additional information about the nature and circumstances of the sexual-harassment complaint, the outcome of the internal investigation, and other mitigating and aggravating factors, the Seventh Circuit could not say that he was similarly situated.

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