By Wayne D. Garris Jr., J.D.
After the wife filed a charge of discrimination, the employer demanded that her husband resign from his executive chef position as a term of settlement.
Denying in large part an employer’s motion to dismiss the Title VII and ADEA claims of two married employees who worked for a golf complex operator, a federal court in Wisconsin found they sufficiently pleaded that the wife was subjected to retaliatory discharge and her husband was terminated for complaining about his wife’s treatment at work. A log that the wife kept documenting discriminatory treatment to which she and other female employees were subjected qualified as opposition to discrimination under Title VII, held the court, finding further that in addition to his retaliatory discharge claim, the husband sufficiently pleaded some of the poor treatment he received was based on his age (Fischer v. Sentry Insurance Mutual Co., December 10, 2019, Crabb, B.).
The employees worked at a golf complex, the wife as the front house manager for an onsite restaurant and the husband as the executive chef for the employer’s banquet services. In 2015, the general manager promoted a new restaurant department head, who became the wife’s supervisor.
Log. Both the general manager and restaurant head, the employees alleged, treated women more poorly than men, including ignoring their ideas, criticizing them, being rude, and disciplining them more harshly than men. The restaurant head also allegedly made demeaning and sexual comments to women employees. The wife kept a log that documented the managers’ discriminatory and abusive towards her and other women.
Wife terminated. In January 2017, the general manager and restaurant head completed the wife’s performance review. Sometime in March, the wife noticed her log was missing from the bag that she kept in her office. Shortly after the log went missing, the general manager and restaurant head revised her January 2017 review to add more criticism of her performance and then terminated her. In response, the wife sent a letter to the employer’s legal counsel regarding the discriminatory treatment of women and filed a charge of discrimination with Wisconsin’s Equal Rights Division.
Confrontation. On the same day that his wife was terminated, the husband confronted the general manager and told him that he should not have fired his wife and that the GM was condoning the restaurant head’s misconduct. After that discussion, the general manager reduced the husband’s involvement in projects and changed the company’s budget so that the husband’s department would receive less revenue.
Husband terminated. The employer demanded that the husband resign from his position as a condition of settling the wife’s discrimination claims. A few days later, the husband wrote a letter to the employer’s CEO expressing his concern about the settlement demand and reiterating his support for his wife. The next day, the employer fired the husband. The couple filed suit alleging hostile work environment, retaliation, and age discrimination against the husband. The employer moved to dismiss.
Retaliation. The court first examined whether the wife’s act of recording instances of sexual harassment and discrimination in the log was opposition to workplace discrimination under Title VII. Alone, writing in the log was insufficient to show the wife engaged in protected activity—there must be some evidence that the information in the log was disclosed to the employer. The wife argued that the court could infer the employer was aware of the log because she was fired shortly after it went missing. Although this was speculative, because the case was at the motion to dismiss stage, her speculation was sufficient to advance her claim, the court observed, noting that she would need to develop facts to support this theory at the summary judgment or trial stage.
Age discrimination. As to the husband’s ADEA claim, the employer argued that not only did he fail to plead that his age was a "but for" cause of his termination, his allegations were not sufficient to infer that he was discriminated against because of his age. Finding that he adequately alleged he was subjected to an adverse employment action because of his age, the court noted that he did not have to prove his age was the cause of all of the alleged poor treatment, only that it was the but-for cause of an adverse action.
Adverse actions. Lastly, the court rejected the employer’s argument that much of the alleged mistreatment such as ignoring ideas, giving a poor performance evaluation, and yelling did not rise to the level of adverse action. The employees did not assert that every instance of mistreatment provided an independent basis for liability, but those allegations of mistreatment were put forth to illustrate the employees’ working conditions. Further, they alleged that their terminations were retaliatory, which is an adverse action.
The case is No. 19-cv-156-bbc.
Attorneys: Patricia J. Epstein Putney (Bell, Moore & Richter, S.C.) for Teresa Fischer and David Fischer. Carmen N. Decot (Foley & Lardner LLP) for Sentry Insurance and ABC Insurance Co.
Companies: Sentry Insurance; ABC Insurance Co.; Sentry Insurance - A Mutual Co.
Cases: Discrimination SexDiscrimination SexualHarassment AgeDiscrimination Discharge WisconsinNews
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