Employment Law Daily Outlook calendar showed males scheduled for more meetings, bolstering fired female’s pretext argument
Thursday, January 18, 2018

Outlook calendar showed males scheduled for more meetings, bolstering fired female’s pretext argument

By Marjorie Johnson, J.D.

Reconsidering and vacating its initial decision tossing a fired state agency director’s gender bias and retaliation claims on summary judgment, a federal court in Pennsylvania decided that a jury might disbelieve the employer’s proffered reasons for firing her—which included her alleged bad attitude, poor leadership, and bad working relationships—based on newly considered evidence supporting her contention that her female supervisor preferred males, shut her out of meetings, and overly criticized her performance. However, she failed to convince the court to revive her claims of quid pro quo sexual harassment, defamation, and unequal pay (McSparran v. Commonwealth of Pennsylvania, January 11, 2018, Caldwell, W.).

Hired in 2004 by the Pennsylvania Department of Environmental Protection (DEP), the employee was promoted to a director position in 2006. In 2011, she began reporting to the female supervisor, whom she alleged shunned her, published falsehoods about her, withheld business communications from her, and excluded her from meetings. In 2013, she was notified that her services “were no longer required,” despite having never been warned about any performance issues, and was replaced by a less qualified male. This lawsuit followed, alleging a myriad of claims. Some claims were dismissed as implausible while the rest were tossed on summary judgment.

New evidence permitted. In urging the court to reconsider its summary judgment order, the employee submitted an edited declaration and additional evidence, which after an exhaustive discussion, the court agreed to consider over the defendants’ objections.

Jury could disbelieve proffered reasons. The employee’s edited declaration contradicted some of the proffered reasons for her discharge, which included her purported negative attitude, failure to demonstrate leadership and act as a team player, use of disparaging language about a peer, and an overall attitude of “superiority and disdain” for those in the chain of command. For instance, she showed that she was competent at her job, which could be interpreted to mean that she supported the goals of the administration, worked successfully within fiscal parameters, stayed within accepted advocacy for program and staff, showed leadership qualities, and acted as a team player. She also submitted testimony of another male director who said she was a team player and a strong advocate for her employees. This evidence sufficiently suggested that the defendants’ proffered reasons were unworthy of credence.

Comparator evidence supports pretext. The newly considered evidence also supported her assertion that her supervisor treated her male peers and subordinates more favorably by communicating with them often and frequently inviting them to attend important meetings, while not doing the same for her. In so ruling the court reviewed additional excerpts from the supervisor’s Outlook calendars that had not been previously submitted, which the employee contended showed she rarely met with her supervisor while two of her male peers had several meetings with her and were also invited to attend meetings with executive staff or outside agencies. Because this bolstered her showing of pretext, the court determined that a jury should decide whether the minimal contact she had with her supervisor was due to her gender.

Retaliation claim also revived. The court also vacated the part of its prior order granting summary judgment on her retaliation claim, since it made that decision based on its finding that there had been no disparate treatment. Because there was indeed sufficient evidence of disparate treatment, the retaliation claim would also be heard by a jury.

Failed to revive other claims. However, the court stood by its determination that she could not defeat summary judgment on her defamation claim since the challenged statements were not defamatory as they were only criticisms of her job performance. It also would not change its mind as to her quid pro claim, which it found unviable since the prior supervisor whose sexual advances she allegedly rebuffed was a nondecisionmaker, or her equal pay claim.

After-acquired evidence. Having revived her bias and retaliation claims, the court revisited the defendants’ assertion that her damages should be limited because she committed a dischargeable offense by retaining DEP documents on her home computer after she was terminated. Because they admittedly lacked enough information to determine if her alleged misconduct was sufficient to lead to her dismissal, the court found that this issue could be pursued at trial. The court also rejected their bid to limit her damages under the doctrine of judicial estoppel based upon her alleged inconsistent statements in this case and her worker’s compensation proceedings.

“Porngate Report.” In another part of its decision, the court rejected the employee’s attempt to introduce evidence of a state report that was released after the parties filed their initial motions for summary judgment. Sometimes referred to as the “Porngate Report,” it dealt with the widespread use of the state’s email system to send and receive inappropriate emails, including pornography and gender based derogatory jokes.

The employee argued that its findings contradicted the proffered reasons for discharging her, showed preferential treatment towards males, and established her claims that her liberty interests and due process rights were violated. The court, however, disagreed, finding that the report had no relevance as she was not disciplined in “Porngate,” nor did she have any connection to the scandal.

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