Labor & Employment Law Daily Employee fired for violating ‘EIP,’ not her two-year-old sexual harassment complaint against former boss
Tuesday, August 27, 2019

Employee fired for violating ‘EIP,’ not her two-year-old sexual harassment complaint against former boss

By Marjorie Johnson, J.D.

Though the employee claimed her subsequent supervisor learned about her complaint during a friendly breakfast he had with her former boss at a critical time in her career, the timing didn’t add up and he wasn’t a decisionmaker in her firing.

An employer terminated for violating the terms of her employee improvement plan (EIP), two years after she filed a sexual harassment complaint against her former supervisor that led to his firing, failed on appeal to revive her Title VII claims of retaliation and gender bias. Though she argued that the former supervisor was friends with her new boss and told him about the harassment complaint that got him fired on the same day that she received a critical evaluation, it was undisputed that the new supervisor never actually learned about her complaint until after she was been placed on the EIP, and another manager was sole decisionmaker in her firing. Affirming summary judgment against her, the Seventh Circuit recognized that “while it may be possible for workplace harassment to haunt a victim’s ability to succeed long after the incident,” the evidence here did not support such a finding (Rozumalski v. W.F. Baird & Associates, Ltd., August 22, 2019, Wood, D.).

Harassing supervisor fired. The employee filed a sexual harassment complaint against her former supervisor in July 2012, after he purportedly tried her to kiss her in front of clients at an out-of-work conference. The employer promptly investigated, terminated the supervisor, and gave his job to the employee. Because she was located in Wisconsin and her new supervisor was in Ontario, a local manager who had been involved in the sexual harassment investigation became a non-substantive supervisor.

Promoted, but unhappy with critical review. She did well in her new role, prompting a large bonus and another promotion in the fall of 2013. Though she claimed that she continued to receive positive feedback in her new role, her supervisor testified that she was consistently tardy and struggled with her responsibilities. When he came into town in December, he presented her with a performance review that included several areas for improvement, which she deemed critical.

Sees a conspiracy. A few weeks later, she learned that the supervisor had breakfast with her former boss the morning of her review, since the two had remained friends. After she verbally voiced her suspicions to the local manager, she received another negative evaluation from the supervisor in February. She complained again to the local manager, who told her to put her concerns in writing. She therefore wrote him a letter on March 20 attributing her supervisor’s criticism to his friendship with her former boss.

Claims EIP was retaliation. On May 1, the employee was advised that she was being placed on an EIP. The EIP set forth several requirements, including that she report to the local manager if she was going to leave the office other than for her normal lunch break. Four days later, on May 5, she wrote a letter to management alleging that her supervisor was retaliating against her for her 2012 harassment complaint. This was the first time she explicitly reported retaliation.

Discharged. On June 23, she skipped lunch and instead took a 90-minute break in the middle of the afternoon to get her nails done without notifying anyone she was leaving. Because her unauthorized absence violated the her EIP, she was terminated.

No retaliation for sexual harassment complaints. The employee’s first theory of retaliation revolved around her supervisor’s breakfast with her old boss in December 2013. She claimed that was when he first learned about her 2012 harassment complaint, prompting him to retaliate against the woman who got his friend fired. However, this theory was belied by the record since it was undisputed that the supervisor didn’t learn about her harassment complaint until May 2014. Not only did he testify that her name never came up at the breakfast and that he did not learn of her complaints until she explicitly mentioned them in her May letter, she in fact conceded that point during discovery. And by May, his concerns about her work were well documented and she was already on an EIP.

Not a decisionmaker. While her dismissal followed the supervisor’s discovery of her 2012 complaints, she conceded that he was not involved in her firing and that the local manager was the sole decision. She did attempt to invoke the cat’s paw theory by arguing that her former boss poisoned the new supervisor’s opinion of her at their December breakfast. She claimed he made negative comments about her performance, which soured her supervisor’s opinion of her at a crucial moment and then snowballed. However, because she waived this argument before the district court, the Seventh Circuit refused to consider it now.

No retaliation for complaints about current supervisor. The employee also claimed retaliation for her complaints of discriminatory conduct by her Ontario supervisor in the spring of 2014. Though the employer argued that these didn’t constitute protected activity since her suspicions about him were objectively unreasonable, the Seventh Circuit didn’t need to address that issue since she had an “insurmountable problem” with timing.

The negative feedback she received from him in December 2013 predated her complaints about him. She verbally complained to the local manager sometime before February 18, 2014, but he did not pass those complaints along to others. And while her February 18 evaluation was signed by the local manager, it documented her continued performance deficiencies in areas of her job the supervisor oversaw, at which point, he still knew nothing about her complaints. By the time he saw her March 20 letter, there were already four months of documented performance issues.

Crucially, even if she did make out her prima facie case, she still could not prevail because she made another critical concession. In response to the employer’s proposed findings of fact, she conceded that the employer believed her work continued to suffer from various deficiencies through the first quarter of 2014. Thus, she conceded that its reasons were not pretextual.

Lack of comparators dooms bias claim. She also failed to make out a prima facie case of sex discrimination since she couldn’t point to any adequate comparator. She argued that her former supervisor was similarly situated, but his alleged misconduct was not only quite different from her alleged performance issues, it was resolved by his firing. And while she claimed that the Ontario supervisor exhibited similar performance deficiencies, such as missed deadlines and unreliability, she failed to provide any specific details about them. She also claimed that she was the only employee ever put on an EIP but provided no evidence that other employees had similar performance problems.

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