Employment Law Daily Jury to decide whether ending employee’s 15-year telework schedule was retaliatory
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Tuesday, July 11, 2017

Jury to decide whether ending employee’s 15-year telework schedule was retaliatory

By Kathleen Kapusta, J.D.

Whether ending a telecommuting agreement after 15 years is sufficiently harmful to dissuade a reasonable employee from complaining of discrimination is a factual determination for a jury to make, a federal district court in the District of Columbia reasoned. Accordingly, it denied summary judgment against the Title VII claim of an employee who alleged that her telework arrangement was terminated in retaliation for having filed an EEOC charge against the company owner for making “inappropriate and unwelcome” sexual advances toward her (Robinson v. Ergo Solutions, LLC, July 5, 2017, Bates, J.).

For almost her entire 15-year tenure with the company, the employee was allowed to work from home. However, several months after she filed the EEOC charge against the owner, she was informed she could no longer telework and instead was required to report to the office every day. Although she claimed no reason was given for this decision, her employer asserted it was in response to her repeated absences during a one month period.

Adverse action? Moving for summary judgment on her Title VII retaliation claim, the employer argued that requiring the employee to appear in person at her office was not a materially adverse action unless she could show a specific reason—such as caregiving obligations outside of work—that required her to work from home, which the employee was unable to do. But a care-taking obligation outside of work was not the only way to show that terminating her telework arrangement—after allowing her to telecommute for 15 years—was a sufficiently adverse action that it “could well dissuade a reasonable worker from making or supporting a charge of discrimination,” said the court.

While in general, said the court, it is reasonable to expect that an employee will report to the office for work, taking away the benefit of telecommunicating after it has been enjoyed for 15 years is another matter. Noting that the question whether a change in duties is functionally a demotion is a factual one, the court found that the ultimate question here—whether ending the employee’s telework arrangement after 15 years would dissuade a reasonable employee from engaging in protected activity—was a question for the jury to decide.

Was action because of complaint? The employer next argued that the employee could not show her telework schedule was revoked because of her EEOC complaint. It claimed that the delay between the complaint and the alleged retaliation was too long, that it presented a legitimate, nondiscriminatory reason for its actions, and that the employee could not show her supervisor acted because of her complaint.

Disputed timeline. As to the delay, the timeline itself was disputed. Although the employee claimed she was told she could no longer telework six months after she filed the EEOC charge, the employer contended that the decision was actually made eight months later. While a lengthy delay between the protected activity and the adverse action may indicate the connection is too attenuated to support an inference of retaliation, there is no consensus on just how long is too long, and six months, said the court, “seems to fall into a gray area.” However, the employee also claimed that after she filed the charge, a series of escalating conflicts with her supervisor began—including reprimands and poor performance reviews. Taken together, this was sufficient to support an inference of a causal connection between the filing of the charge and the revoking of her telework privileges.

Too many absences? As to the employer’s assertion that it ended the telework agreement because of the employee’s frequent unexcused absences between July 1 and July 22, the court found this was inconsistent with the employee’s timeline as she claimed she was informed on July 8, and not in September as the employer claimed, about the decision. Thus any absences occurring after July 8 could not have been the true reason for the employer’s decision to end her telework schedule. Accordingly, said the court, not only did the employer’s professed nonretaliatory reason depend on resolving a factual dispute in its favor, but should a jury decide that fact in the employee’s favor, it would strengthen her argument that its asserted reasons were pretextual.

Finally, the court found fact questions as to whether the supervisor, who purportedly did not know about the employee’s sexual harassment allegations against the owner, was solely responsible for the revoking the telework arrangement. According to the employee, the July 8 email informing her about the schedule change, which was sent by her supervisor, appeared to copy the company’s HR director and thus a reasonable jury could infer that he was involved in the decision to terminate the telework agreement. Moreover, it was undisputed that he knew of the employee’s EEOC complaint. Accordingly, a reasonable jury could infer that the individuals who made decisions about whether or not the employee could continue to telework knew of her EEOC complaint.

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