Worker fired days after complaining of sexual harassment can’t advance Title VII claims
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Monday, June 10, 2019

Worker fired days after complaining of sexual harassment can’t advance Title VII claims

By Kathleen Kapusta, J.D.

While the employee claimed she was fired for complaining that both a coworker and supervisor had sexually harassed her, she could not show the employer’s stated reason for firing her—her own threatening emails she sent to another worker—was pretextual.

The Title VII claims of a staffing agency employee who was fired from her assigned municipal job two days after she complained about sexual harassment were dismissed on summary judgment by a federal court in Florida. While a coworker engaged in inappropriate conduct, it was not severe or harassing and there was no evidence the city was negligent in handling her complaints. Further, the city exercised reasonable care to correct a supervisor’s harassing behavior. And because she could not show the city’s reason for terminating her was pretextual—she had sent threatening emails to another coworker with whom she had been romantically involved—her retaliation claim failed as well (Harrison v. City of Tampa, June 4, 2019, Jung, W.).

Beginning to feel uncomfortable out there. Two weeks after she was assigned by her staffing agency employer to work for a city water department, the employee began having problems with her city supervisor and a coworker. About two months into her assignment, she complained to the supervisor about the coworker, saying that "culture-wise" she was "beginning to feel uncomfortable out there."

The next day, she was called to a meeting with her supervisor, his boss, and another water department supervisor to discuss her complaints. The following day, she met with HR, and provided notes from the coworker stating that "Dang you look good as hell," and "take a picture of yourself." She also provided copies of text and Facebook messages including "Damn you are so Sexy." In addition, she reported that he gave her gifts of shoes and underwear. The day after she met with HR, the coworker was questioned about her allegations, cautioned to keep his distance, and sent a letter of counseling.

Fatal attraction. A month later, another city worker, who had been involved in a consensual relationship with the employee, told the supervisor he had been receiving threatening messages from her. Complaining that he was in "fatal attraction" situation, the worker claimed the employee had called and texted him so frequently, he had blocked her number. He also provided copies of messages from her stating "Im just as nasty if not even worse... You hurt me imma hurt you back," and "All you doing if further pissin me off." Questioned about the texts, the employee was unable to produce a complete set of messages with the worker as, she claimed, her original phone and a replacement phone had flown out her car window and were lost when she was involved in an accident.

Supervisor, too. Around the same time the worker was complaining about the employee, the employee met with the staffing company president to complain about the first coworker and supervisor. The supervisor, she alleged, had asked her whether she’d ever been a stripper, touched her inappropriately, and rubbed on her. The president then contacted the city’s HR director, who in turn talked to the supervisor. HR then met with the employee, who provided Facebook messages from the supervisor and claimed he made sexual advances to her every day. She also told HR that not long after the coworker had been told to limit contact with her, he sent her a book titled "Dirty Little Secret" and continued to contact her through Facebook.

Fired. During the meeting, the employee was told she would no longer be working for the city because of her threatening and inappropriate text messages to the second worker. After further investigation, the supervisor and coworker resigned in lieu of termination. The employee subsequently sued under Title VII for hostile work environment sexual harassment.

Coworker’s harassment. Regarding her claim that her coworker sexually harassed her, the court found that while his conduct was inappropriate, it was not physically threatening or humiliating. Nor was there any evidence it unreasonably interfered with her job performance, said the court, noting that most of the offensive conduct consisted of messages sent to the employee outside of work time. The employee also failed to show how frequently he engaged in offensive conduct. And even if his conduct were sufficiently severe or pervasive, two days after the employee first complained, he was warned to stop all non-work-related communications with her. A week later, he was issued a formal letter of counseling and the employee was told she did not need to communicate with him anymore unless it related to work.

Although the coworker did not heed the warning, the relevant question, said the court, was "not whether the employer’s remedial measure actually prevented the conduct from recurring but whether it was reasonably calculated to do so. Here, as soon as the city learned the coworker was continuing to have inappropriate communications with the employee, it launched another investigation and instituted termination proceedings against him. Thus, there was no showing that the city was negligent in handling the employee’s complaints against him.

Supervisor’s harassment. As to the employee’s claims of harassment against the supervisor, while she argued that she did not receive a copy of the city’s harassment policy and was not informed of the policy during orientation, she failed to cite to any cases that require an employer to educate temporary workers (who are employed by another entity) on its policies to establish the Faragher/Ellerth defense, particularly where, as here, the employee knew how to complain about sexual harassment and did so on two occasions.

Further, the court pointed out, it was not until the employee complained to the staffing company president about the supervisor’s behavior, and he then contacted the city’s HR manager, that anyone in a supervisory position with the city learned of his alleged conduct. After an investigation, the city decided to terminate him. And while the employee argued that he was allowed to resign instead, both termination and allowing an employee to resign in lieu thereof are sufficient to correct the harassing behavior, the court stated.

The evidence also showed that the employee unreasonably failed to take advantage of preventive or corrective opportunities as she waited more than two months before reporting his harassment. She argued that she did not complain about the supervisor’s harassment in the two meetings regarding the coworker’s harassment because he was present and she "did not feel comfortable" complaining in his presence. But she offered no explanation as to why she did not report his behavior outside of those meetings, the court observed, granting summary judgment to the city.

Retaliation. Turning to the employee’s claim the city ended her work assignment in retaliation for her complaints, at issue was whether she could show a causal connection between the two. Although her termination approximately two days after her complaint about the supervisor’s alleged harassment was sufficient to show close temporal proximity, the city argued it fired her because of the threatening text messages she sent to the second worker, which was a legitimate, nonretaliatory reason.

While it was not clear which came first—the worker’s complaint about the employee or the employee’s complaint about her supervisor—a plaintiff cannot insulate herself from termination by preemptively making a harassment complaint, said the court. Thus, to the extent she made her complaints after the city learned about the second coworker’s complaints, the timing of events was not helpful to her.

And while the employee argued the city terminated her assignment because she admitted to sending the harassing text messages during her July 1 meeting with HR and the supervisor seemed to know she would be terminated before she admitted to sending the text messages, this argument rested on a misreading of the evidence, said the court. The city did not contend that it terminated the employee’s assignment because she admitted to sending the text messages but rather only that the assignment was terminated because she did, in fact, send the messages, a fact that was confirmed as soon as the city’s HR representatives saw the messages. That the supervisor knew about the termination a day earlier suggested only that the decision may have been made before it was communicated to the employee. "It certainly does not suggest," said the court, "that the real reason for the termination was retaliation—let alone that retaliation was the but-for cause of the termination."

The case is No. 8:17-cv-01369-T-02CPT.

Attorneys: Arnold S. Gaines (Law Offices of A. Gaines) for Brandy Harrison. Thomas M. Gonzalez (Gray Robinson) for City of Tampa. Dori K. Stibolt (Fox Rothschild) for Mainzer Management, Inc.

Companies: City of Tampa, Florida; Mainzer Management, Inc.

Cases: SexDiscrimination Discharge SexualHarassment Retaliation FloridaNews

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