Labor & Employment Law Daily Jury to decide if exec was fired for disclosing pending EEOC charges against her former employer
Wednesday, February 13, 2019

Jury to decide if exec was fired for disclosing pending EEOC charges against her former employer

By Marjorie Johnson, J.D.

Though a wireless distributor asserted it terminated an employee because AT&T had barred her from working with AT&T customers, she presented evidence suggesting she was fired the day after her supervisor learned of her pending EEOC charges against AT&T.

Although wireless device distributor Nexlink claimed that it terminated its director of AT&T channel sales because AT&T had prohibited it from letting her work on AT&T accounts, she defeated summary judgment on her Title VII retaliation claim asserting she was discharged the day after she disclosed to Nexlink that she had filed a sexual harassment against her former AT&T supervisor and had a pending EEOC charge against the company. She also brought a Title VII retaliation claim against AT&T challenging as pretextual its assertion that she was discharged for violating the code of conduct by inflating numbers, which she claimed she did at the harassing supervisor’s instruction (Barter v AT&T, Inc., February 7, 2019, Barker, S.).

Inflates data at supervisor’s behest. The director, who previously worked as an AT&T sales manager since 2009, was transferred to AT&T’s landline division in 2013. In May 2014, she told her supervisor that she had learned that another group was fraudulently inflating its widget counts to meet its sales goals, and he instructed her to do the same. Fearing termination, she followed his orders.

Rejects sexual advances. During a business trip a few months later, the AT&T supervisor invited the then sales manager to his hotel room to discuss business after he had been heavily drinking at dinner. When she declined his invitation to sit by him on the bed, he exposed himself and told her not to act like she did not want it. She left the room and later reported the incident “hypothetically” to HR, who discouraged her from making a formal report since she would likely be labeled a difficult employee.

In January 2015, AT&T discovered that her department’s widget numbers had been inflated for several months and began an investigation. She admitted to the conduct but said that she was following her supervisor’s orders and also reported his sexual harassment. She was suspended and ultimately terminated, purportedly for violating the company’s code of conduct in mid-March. Meanwhile, her supervisor had resigned before completion of the investigation into his own misconduct.

Hired by Nexlink. On April 1, the former AT&T manager was hired as the director of AT&T channel sales for Nexlink but did not disclose the fact that she had been investigated, suspended, and terminated by AT&T. Nexlink was a “solutions provider” for AT&T, and their affiliate agreement gave AT&T the right to prohibit Nexlink “from using any Person, or Subcontractor” in connection with the services provided under the agreement “for any reason.”

Barred from selling AT&T services. On May 28, the director filed an EEOC charge against AT&T. Around that same time, one of the AT&T alliance channel managers informed her Nexlink supervisor that AT&T did not want her “representing” the company. This restriction originated from the official who fired the director after it was learned that she was working for Nexlink, purportedly out of concern that the director would have access to the same systems that she had used to improperly access AT&T’s customer records. The AT&T official did not explain these reasons to the alliance channel managers, and this was the first time they had been told to inform a solutions provider that its representative could not market and sell AT&T services.

VP continues to raise concerns. The AT&T official contacted the AT&T managers a second time in late July to confirm that the director was not representing AT&T and on July 28, her Nexlink supervisor asked for confirmation. When the AT&T official again raised concerns in late August, the AT&T managers again contacted her Nexlink supervisor on August 26, who testified that he was then told for the first time that she could not access any AT&T systems, enter any AT&T facilities, or speak with any AT&T customers or directors.

Terminated. A few hours later, the supervisor asked her if she knew why AT&T was restricting her duties. She responded by telling him for the first time that she had been sexually harassed by her boss at AT&T and had a pending EEOC charge against the company. He decided later that same afternoon to terminate her, purportedly because her she could not run the AT&T sales division given the restrictions imposed by AT&T. She was notified of her discharge the next day.

Inference of retaliation. The district court found that the suspicious timing and evidence of pretext provided a sufficient basis for drawing an inference of retaliation, precluding summary judgment. Though Nexlink claimed that it terminated the director because she would have been unable to perform her job duties going forward, given the onerous nature of the permanent restrictions conveyed to her supervisor by AT&T during the August 26 telephone conversation with the alliance channel managers, triable issues existed as to the exact message that was communicated during that conversation and when Nexlink first understood the full extent of the restrictions.

A reasonable jury could conclude that no new restrictions were imposed during the August 26 telephone conversation and that the director had been satisfactorily performing her job duties under those restrictions since she was hired by Nexlink with no complaints. A jury could also reasonably conclude that Nexlink’s proffered reason for her termination was pretextual and that the only thing that changed was that she told her supervisor that she had complained about sexual harassment while employed by AT&T and believed it was retaliating against her by imposing restrictions on her employment with Nexlink. Finally, a jury could find that she was terminated the next day in retaliation for engaging in protected activity during her employment with AT&T.

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