Employment Law Daily Sleepovers suggest supervisor’s conduct welcome, yet Title VII claims still go to trial
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Monday, January 22, 2018

Sleepovers suggest supervisor’s conduct welcome, yet Title VII claims still go to trial

By Lorene D. Park, J.D.

Denying cross-motions for summary judgment in a Title VII suit, a federal district court in Arizona found triable issues on whether an employee was sexually harassed by her supervisor and fired four days later in retaliation for reporting it, or whether she was—as the hospital claimed—fired for her lack of transparency in not also disclosing that she regularly had dinner with the supervisor and that he slept over at her house on two occasions. There was also a material factual dispute on whether the employer treated similarly situated male employees better. The court reserved for trial the decision on whether an adverse inference jury instruction was warranted for spoliation of an HR rep’s notes (Tipp v. Adeptus Health Inc., January 17, 2018, Campbell, D.).

Complaints about supervisor. The employee, a hospital case manager, complained twice in 2015 that her supervisor was unresponsive, and by fall she requested a transfer to another supervisor, which was denied. On October 12, an HR rep interviewed her about her complaints and she indicated the supervisor didn’t communicate well or address her professional needs, but she made no mention of sexual harassment. A few days later she offered to resign but the CEO refused to accept, stating she was an asset to the organization. On October 22, the HR rep informed the employee she would remain under the same supervisor. Upset, the employee complained later that day, for the first time alleging the supervisor had sexually harassed her. She shared text messages with the HR rep and described some of the alleged harassment.

Investigation reveals more than employee reported. An investigation ensued, including interviews with the employee’s coworkers, who suggested to HR that the supervisor twice slept at the employee’s house, that they had weekly dinners together, and that the employee was known to joke about being pregnant with the supervisor’s child. On December 26, the VP of human resources informed the employee that both she and the supervisor were being fired. The VP pointed to the employee’s lack of transparency in complaining of harassment. She filed suit under Title VII and both parties moved for summary judgment.

Spoliation of HR notes. The court first addressed the employee’s motion for spoliation sanctions. She sought an adverse inference jury instruction or directed verdict based on the employer’s destruction of the HR rep’s handwritten notes of her investigation. The HR rep used a note book to record notes of meetings, including notes on the employee’s sexual harassment complaint. The employee sent a litigation hold notice on November 17, 2015, and this was conveyed by email to the HR rep the next day. Nonetheless, when her notebook was full she shredded it in the spring of 2016. The employer conceded that it had a duty to preserve the handwritten notes and the HR rep testified that they reflected “the entire investigation,” including witness interviews though she typed a “copy” of the notes before they were shredded.

Rejecting the employer’s argument that the handwritten notes weren’t relevant because the employee had received the typed version, but finding no evidence of bad faith or intentional destruction or clear evidence that the employee was prejudiced, the court refused to grant a directed verdict. It also refused, at this time, to find that an adverse inference instruction was warranted. That said, the employee could present evidence of the spoliation at trial and, at a minimum, argue to the jury that the notes would have been helpful to her. The court would decide at trial whether an adverse inference instruction would also be granted.

Gender discrimination. Seeking summary judgment on the discrimination claim, the employer argued the employee did not meet its legitimate expectations because her complaint was late and she omitted details suggesting she may have welcomed some of the alleged harassment. She, on the other hand, pointed out that the CEO considered her an “asset.” In the court’s view, this disagreement raised a material issue for trial. It also found triable issues on whether male employees were treated more favorably given that a male nurse sent inappropriate texts and neither the CEO nor the supervisor had reported their sleepovers, yet the employee was the only one fired. Moreover, the male nurse was given a chance to respond to the allegations against him but the employee was not allowed to do so. This raised a prima facie inference of discrimination and raised a triable issue on pretext, so summary judgment was denied.

Hostile work environment. The parties’ motions were also denied on the hostile work environment claim because the court found material disputes on whether the supervisor’s alleged harassment was unwelcome, given evidence that the employee participated in some of the communications. There was also evidence that the employer did not adequately communicate its anti-harassment policies, including the employee’s testimony that she was never given a copy or adequately informed of their content. She also testified that she thought her supervisor was the primary avenue to complain. Based on this, the court also found a triable question on whether it was reasonable for the employee to withhold information about the harassment until October.

Retaliation. The employee’s Title VII retaliation claim would also go to trial. With respect to causation, the employee pointed to the timing of her termination just four days after she complained of sexual harassment and to the fact that she had recently been told by the CEO that she was an “asset” to the company. And while the employer claimed it only made the decision to terminate her after she failed to explain her lack of transparency in sharing all important facts when she complained, some evidence suggested the termination decision was made before the date the employer claimed it gave her a chance to explain. Not only did these issues raise questions on causation, they also raised triable issues on pretext, concluded the court.

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