Employment Law Daily Reporting others’ complaints about date requests and secret videotaping was protected activity
Friday, January 26, 2018

Reporting others’ complaints about date requests and secret videotaping was protected activity

By Lorene D. Park, J.D.

Denying a medical center’s motion to dismiss Title VII and state-law retaliation claims, a federal district court in Pennsylvania concluded that an administrator sufficiently alleged that she engaged in protected activity shortly before her termination, when she told the HR director that her superior was engaging in “sexual behavior” by being flirtatious with a female executive, kissing a subordinate, and asking another for a date; she also reported that a department chief was secretly videotaping conversations with female staff during which he jokingly said he was having a sex change (Pacheco v. Pocono Medical Center, January 23, 2018, Caputo, R.).

Complaint of “sexual behavior.” The employee was hired as a physician recruiter in November 2011 and by 2014 became a practice administrator. In mid-2015, she complained to the director of human resources that her male superior had a practice of hiring and favoring young and pretty females. In September she reported that he was engaging in “sexual behavior” at work by flirting with a female executive, hugging and kissing another female employee, and then asking a third out for a date.

Poor reaction. The HR director advised the employee to keep her head down and not say anything, so the employee reported the behavior to another executive. Around that time, the alleged harasser held a meeting in which he indicated he was angry about the complaint because he feared his wife would learn about it and he also indicated he knew who complained and would ensure she was gone.

Complaints about department head. In November, the employee reported to the HR director that the chief physician of the OB/GYN practice was making offensive statements about women and had a practice of video recording employees without their knowledge while he told them of his plans to undergo a sex change operation. He had done this to the employee and then had explained to her that he was joking and had secretly recorded her. She subsequently also complained to the operations director that the chief had referred to a female medical assistant as a “f*cking stupid Italian” and then called the employee a “f*cking idiot.”

Termination. After that operations director resigned and the employee renewed her complaint to the new director, the chief physician stopped by her office and stated maliciously: “So I hear people are being laid off at 3:00 PM today.” The employee was terminated later that day. She was told that it was due to budget concerns and the decision had been in the works for months, but the medical center was still hiring new practice managers just weeks earlier and subsequently hired someone to do what was essentially the same job the employee occupied.

Retaliation claims proceed. Denying the medical center’s motion to dismiss the employee’s retaliation claims under Title VII and the Pennsylvania Human Relations Act, the court rejected the employer’s argument that she failed to make a prima facie case because the incidents to which she referred did not constitute “protected activity.” Though the employee’s first complaint had been found deficient in this regard, she filed an amended complaint that cured the deficiencies.

Specifically, the employee alleged that in one of her complaints to HR she reported that one of her direct reports complained that her male superior asked her on a date and the subordinate said she felt obligated to accept what she viewed as an “unwanted” advance. Accepting that this conduct was unwanted for purposes of the motion, then reporting the subordinate’s complaint was protected activity. So too was the report that the department chief was creating a sexually hostile work environment by video recording at least three female employees’ reactions to his false story of pursuing a sex change operation. She also had reported the chief’s comment that he “hated women.” This was enough to avoid dismissal.

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