By Wayne D. Garris Jr., J.D.
Within a few weeks after complaining about harassment, the production line employee was transferred and terminated; however, he was also planning to take a job at another company.
Denying an employer’s motion for summary judgment, a federal district court in Indiana held that a production worker may proceed with his claims that he was demoted and then terminated because he complained about sexual harassment. After, complaining about harassment from his coworkers, the employee agreed to transfer to another location. However, despite promises from management that the conditions of his employment would remain the same, he was forced to perform lower-level work for more hours and less pay. A few weeks after the employer transferred him, it terminated him citing poor performance. However, the employer later alleged that he resigned. The court concluded that genuine issues of fact existed around the circumstances of the employee’s transfer and termination. Further, the sequence of events after the employee’s complaints was a "precipitous downward spiral" for an employee who had no prior record of discipline and "reasonably leaves retaliation as a legitimate explanation" (Patton v. Forest River, Inc ., February 18, 2020, Leichty, D.).
The employee worked on the production line in the electrical department at the employer’s Sunseeker Plant. The employer manufactured RVs, trailers, buses, and mobile offices. According to the employee, other employees on the production line harassed him including mocking his braces, hygiene, and hair. Other employees made derogatory comments and slurs about the employee’s perceived sexual orientation
Transfer. The employee complained to his work group leader and the plant manager about the harassment, however his coworkers continued to mock him. He complained to an HR manager and they both discussed the possibility of the employee transferring to another plant. The employee took FMLA leave while he decided whether to transfer. The employee agreed to the transfer after the HR manager told him that he would start in a different department but would later be placed in the electrical department but that his pay would remain the same.
The employee transferred to the employer’s Berkshire Plant in September 2017. He was not harassed at the new plant, but he alleged that he was treated poorly. When he arrived at Berkshire, his group leader allegedly told him, ‘I’ve been told not to get too used to you being here!’ He initially did not receive a working timecard, he was paid less at the Berkshire Plant than he would have been at the Sunseeker Plant, and he was not placed in the electrical group. The employee was assigned to clean tile and grout inside of motor homes using a solvent that irritated his nose and throat and he had to replace captain’s seats which required him to carry 150-pound chairs. When he was finished, he was placed on "final finish" which was low-skilled work.
Fired. While at Berkshire, the employee called in sick or left early on five days. On October 20, 2017, the plant manager signed a personnel action notice terminating his employment, which mentioned the five days he missed work or left early. The day before the termination, the plant manager sent the HR manager an email saying he intended to ‘wash [his] hands’ of the employee. The employee filed charges of discrimination and retaliation with the EEOC, which dismissed his charges and issued him a right-to-sue notice. He filed suit in state court, and the employer removed the case to federal court. In federal court, the employee stated that he was only proceeding with his retaliation claim and the employer moved for summary judgment.
Protected activity. The employee alleged that he was subjected to retaliation for taking FMLA leave and complaining about sexual harassment. The employer did not contest the employee’s assertion that taking FMLA leave and complaining about harassment were protected activities, and the court found in the employee’s favor on this issue.
Adverse action. The court concluded that genuine issues of fact existed as to whether the employee’s transfer to the Berkshire Plant amounted to a demotion and whether he was involuntarily terminated or resigned.
The employer changed its explanation regarding the employee’s separation from the company. At the time of his termination, the employer cited his absences, but later claimed that the employee resigned. Taking all inferences in the employee’s favor, the court found that he was involuntarily terminated, and that involuntary termination was an adverse action. The employee testified that prior to his termination he was planning on accepting a position with a new company and providing two weeks’ notice. The employer argued that this was an admission that his retaliation claim is not based on termination. The court was not persuaded that this testimony was an admission but acknowledged that fact issues existed as to whether the employer involuntarily terminated the employee.
A genuine question of material fact also remained as to whether the employee’s transfer amounted to a demotion following his complaints of harassment. The employee was transferred two to three weeks after his first complaint of harassment to management and 11 days after he complained to HR. Upon arriving at Berkshire, he claimed that he was given a timecard that did not work, was paid less, and was given different job duties than what he was told. Furthermore, he presented evidence to suggest that even though he was making less money at the Berkshire Plant, he was working more hours per week, on average, than he worked at the Sunseeker Plant.
Regarding the employee’s job duties, the court noted that his change in work alone wasn’t sufficient evidence of an adverse action. The employee conceded that he did not expect to be immediately placed in the electrical department, and the court found that for the three weeks he worked at the Berkshire Plant, his career prospects had not "been so diminished or stunted by the work he had done up to that point that the change in job duties was materially adverse." However, a reasonable jury could conclude that the combination of less skilled work for more hours and less play amounted to a materially adverse demotion.
Causal connection. Next, the court concluded that there was no causal connection between the employee’s FMLA leave and the adverse actions. The decision to transfer was made before his FMLA leave, and there was no evidence connecting his FMLA leave to his termination.
However, the employee’s harassment complaints warranted a different conclusion. Almost immediately after he started complaining about harassment, his supervisors at the Sunseeker Plant made comments that about his complaints. Further, even though the employee agreed to a transfer, the court noted that possibility of transfer did not arise until the employee complained about harassment—and the employer chose to move the employee rather than correct the behavior of its supervisors and employees.
Turning to his termination, the court already found that factual disputes existed surrounding his termination. Additionally, the Berkshire team leader’s comment that ‘I’ve been told not to get too used to you being here!’ could be evidence of the employer’s intent to terminate the employee.
The court further concluded that sequence of events that occurred after the employee’s complaints could lead a reasonable jury to find a causal connection between the complaints and his demotion and termination. After he complained to his group leader, the employee was subjected to demeaning comments. After he complained to HR, he was demoted 11 days later, was told that he wasn’t expected to be at the new location for long and was terminated a few weeks later. The court described this as "a precipitous downward spiral" for an employee who had no prior disciplinary issues which left retaliation as a legitimate explanation.
The case is No. 3:18-CV-419 DRL-MGG.
Attorneys: Patrick F. O'Leary (Patrick F. O’Leary, Attorney at Law) for Lacy Patton; Devra T. Hake (LaDue Curran & Kuehn) for Forest River Inc.
Companies: Forest River Inc.
Cases: Discrimination Discharge Retaliation SexualHarassment IndianaNews
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