Labor & Employment Law Daily HR director’s overheard ‘threat’ to injure employee not enough to support retaliation claim
Wednesday, June 20, 2018

HR director’s overheard ‘threat’ to injure employee not enough to support retaliation claim

By Kathleen Kapusta, J.D.

Addressing an employee’s claim that her coworkers tried to kill her in retaliation for suing their employer, the Seventh Circuit first found the HR director’s alleged instruction to a deputy chief to “get her alone,” the deputy chief’s response that he was “going to do it,” and his command to “do it to her” were admissible. The employee’s testimony, however, that a colleague told her she overheard the HR director tell the deputy chief she wanted to harm the employee and to figure out a way to get her alone was inadmissible double hearsay. On the merits, the appeals court, affirming summary judgment against the employee, found the threat to her too oblique for a jury to conclude she was subjected to severe or pervasive harassment (Flanagan v. Office of the Chief Judge of the Circuit Court of Cook County, Illinois, June 15, 2018, per curiam).

The probation officer for a county adult probation department had previously sued her employer for discrimination and retaliation, winning at trial in 2007 on her retaliation claim. While an appeal was pending, the employee claimed that late one evening, her colleague overheard the department’s HR director tell a deputy chief something like “I want to bring bodily harm to” the employee and “figure out a way to get [her] alone and way from her partner.” In response, the colleague claimed, the deputy chief replied “I’m going to do it.”

The attempt. The deputy chief then attempted to carry out the plot to kill her in March 2018, the employee alleged, when he radioed for her to join him and another department supervisor at a department facility to question a probationer regarding a potential tip. According to the employee, when the questioning ended, the deputy chief escorted the probationer through the back door while the supervisor locked the front door and escorted the employee toward the back. While near the back door, she purportedly overheard the deputy chief say “Do it to her when she gets out the door. Nothing happened, however, and the employee left the area.

Sick of these lawsuits. Believing she had been threatened, the employee filed an EEOC charge, which prompted the deputy director to approach her in the parking lot and tell her, “I could hit you and nobody would give a f**k.” Sometime after that, he yelled in the office “Oh, here she goes again with a new f’ing charge,” and “I’m so sick of everybody. [T]hese f***ing lawsuits.”

In 2010, the employee brought the instant lawsuit asserting Title VII claims of retaliation and the district court entered summary judgment in favor of her employer.

Hearsay. On appeal, the court first considered whether the various statements in support of the employee’s alleged murder plot were hearsay. Commands, the court observed, are not statements submitted for their truth and thus are not hearsay. Nor are statements of a declarant’s state of mind excluded under the hearsay rule, said the court, finding that the HR director’s alleged instruction to the deputy director to “get her alone,” his statement that he was “going to do it,” and his command to “do it to her” were admissible. The employee’s testimony, however, about what her colleague overheard the HR director tell the deputy chief suffered from a double hearsay problem as they were statements of what the colleague said the HR director and the deputy chief had said. Thus those comment were properly excluded.

Retaliatory hostile work environment. As to the employee’s contention that the deputy chief created a hostile environment when she overheard him say “Do it to her when she gets out the door,” this threat, said the court, was too oblique to be considered severe, as it was “not clear whom he was asking to do what at to who.” Further, the court pointed out, the fact that she walked away unharmed cast further doubt on whether she was ever in danger at all.

Nor did the deputy chief’s parking-lot statement demonstrate retaliation, said the court, noting that this lone comment was best characterized as an “empty threat” rather than “a seriously contemplated declaration of an intent to do harm.”

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