Employment Law Daily Sexual harassment claims untimely; not enough hours worked for FMLA claims
Thursday, October 5, 2017

Sexual harassment claims untimely; not enough hours worked for FMLA claims

By Robert Margolis, J.D.

The Seventh Circuit has affirmed summary judgment to Ford Motor Company in a former employee’s Title VII and FMLA suit. The appeals court agreed with the district court’s conclusions that (1) the employee’s sexual harassment claim was not timely filed after the EEOC issued a right to sue letter, (2) her FMLA claim failed because she did not show that she worked the requisite number of hours during the preceding 12-month period, and (3) her evidence was insufficient to support her retaliation claims (King v. Ford Motor Co., October 2, 2017, DeGuilio, J.).

The employee was transferred to Ford’s Chicago plant in 2010 after 18 years at another Ford location. She claimed that once in Chicago, a supervisor sexually harassed her. She complained to a labor relations representative and called Ford’s national harassment hotline to report the harassment, after which she was reassigned to less desirable assignments, missed out on overtime, and received unwarranted discipline. She was ultimately fired in 2013 after missing several weeks of work for medical reasons that Ford claims she did not document properly.

The employee had filed an EEOC charge after her sexual harassment and again around the time of her termination. After being issued a right-to-sue letter on the latter charge, she filed suit against Ford. She brought claims under Title VII for sexual harassment and retaliation, and for interference with her rights under the FMLA and retaliation for her taking of FMLA leave. She also sued under the Illinois Whistleblower Act.

Declaration rightly stricken. On appeal, the employee objected to the district court’s decision to strike the declaration of the plant’s union chairman, who averred that Ford officials had voiced their displeasure to him about women filing sexual harassment complaints with the EEOC, and commenting that “people better stop complaining.” Also, as relevant to her FMLA claim, he stated that he had discussed with an HR rep why the employee had been marked “absent without leave” on several occasions—to which the HR rep responded that “it would be helpful” if the employee dropped her EEOC charge, and suggested that the AWOLs would be revoked if she did so. However, the employee had failed to disclose this witness in discovery, and her half-hearted effort to excuse her Rule 26(a) violation was insufficient in the district court, and her subsequent efforts came too late, the appeals court held.

Sexual harassment claim untimely. The Seventh Circuit affirmed summary judgment dismissing the employee’s sexual harassment claim because the EEOC issued its right-to-sue letter on her harassment charge on August 31, 2012 and she did not file suit until November 2013, well over the 90-day limitations period. In the district court, she argued that she never received the right-to-sue letter because she moved during that 90-day period, but that argument failed because she did not keep the EEOC apprised of her new address.

The employee made a different argument to the Seventh Circuit, which was equally unavailing. She contended that she reincorporated the allegations from that first, time-barred EEOC charge into her subsequent charge made in connection with her termination in 2013, thus rendering the prior charge timely. However, untimely charges are not revived by including them in timely charges, the appeals court noted, so this argument failed as a matter of law. It also was factually incorrect, according to the court, since the later charges referred to the first charge as protected activity in support of retaliation claims, but do not allege any sexual harassment.

Employee not FMLA-protected. The court also affirmed summary judgment to Ford on the employee’s FMLA interference claim, agreeing with the district court’s conclusion that she failed to provide sufficient evidence that she worked the requisite number of hours to be eligible for FMLA protection. Ford submitted time records that showed the employee had worked only 1,157 hours in the 12 months before she began her work absence in March 2013, and only 970 hours in the 12 months before her firing on April 2, 2013. The employee’s response to the documents was “conclusory.” She submitted an affidavit stating that on unspecified occasions, she was incorrectly marked absent without leave when she was either at work or given leave for her absence. If properly accounted, this would give her the requisite hours. But this evidence did not specify dates or include evidentiary proof of those assertions, so it fell “far short of creating a triable issue of fact,” the appeals court held.

Insufficient evidence of retaliation. The employee also failed to provide sufficient evidentiary support for her claims that Ford retaliated against her for taking FMLA leave and complaining about sexual harassment. For example, while she argued that she was repeatedly denied overtime and reassigned to less desirable positions after filing an EEOC charge, she did not identify who was responsible for those actions or whether that person would have known about her protected activity. In addition, she identified four employees she claims were treated better than she was, but made no attempt to show that those employees are similarly situated, or even that they are outside her protected class.

Moreover, the time gap between the last alleged protected activity (her call to the anti-harassment hotline in April 2012) and her termination in April 2013 was too large to infer causation. “Gaps that large tend to undermine rather than support any inference of causation,” the court noted.

The employee also argued that Ford’s reason for termination was pretextual. Ford contended that she received a “5-Day Quit Notice” after being away without leave, and that she did not timely respond, in that she failed to submit documentation from a doctor. The employee countered that she had timely responded by calling and leaving voice mail messages stating her intent to return to work. The factual dispute need not be resolved, the appeals court said, because even if Ford erred in completing the termination process after deeming her to have failed to properly respond to the Quit Notice, that would not make the termination a pretext for retaliation. The employee provided no evidence from which to infer that retaliation was the reason for her termination, which was fatal to her claim.

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