Worker fired during investigation of her retaliation complaint will take suit to trial
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Wednesday, December 9, 2020

Worker fired during investigation of her retaliation complaint will take suit to trial

By Brandi O. Brown, J.D.

She complained about sexually-charged texts and retaliation stemming from an earlier complaint, but the employer claimed she failed to cooperate in its investigation.

A worker in an Amazon-affiliated fulfillment center will proceed with her Title VII claims against her former employer, a federal district court in Tennessee ruled, denying the employer’s motion for summary judgment. A question of fact existed regarding whether her complaints, including being made "uncomfortable" by texts received from a driver, constituted protected activity. Noting also that she was fired while the employer was investigating her claim about the text messages, the court found that a reasonable jury could conclude that the employer’s given reason was pretextual. The parties’ cross-motions for summary judgment were denied (Tenpenny v. Prime Now, LLC, December 7, 2020, Campbell, W., Jr.).

Complaint. At the beginning of 2018 the employee, an Assistant Manager at Prime Now’s Nashville fulfillment center, became uncomfortable around one of the contractor delivery drivers the employer used. Although it was against policy, the contractor drivers sometimes helped the employees process packaging orders, which was referred to as "slamming." She became worried about one of the drivers working in proximity to her based on text messages he sent to her, as well as statements made by another coworker about him and comments he had made about the plaintiff. She avoided her work area if he was around. She also spoke to the Operations Manager about him in mid-January, as well as the other drivers who were in the slamming area. The parties disagree over whether her complaint was about the drivers generally or about the sender of the text messages more specifically, or some combination, but they agreed that she complained and mentioned the texting driver specifically.

Stalking. According to the employee, after her complaint the texting driver began "stalking" her. She reported an incident to her supervisor in late February where, while she was alone in the warehouse, the texting driver began ringing the doorbell repeatedly. In March she told the operations manager that the driver was continuing to send her texts and she showed one of them to the manager. At the manager’s suggestion, she asked the driver to stop texting her (according to the EEOC charge she later filed she told him he would be fired if he did not) and he did. Around the same time, the operations manager told the assistant managers that drivers could not help with "slamming."

Backlash, complaint, discharge. This directive led to backlash against the employee, who reported to HR, among other things, that a supervisor had told her he had a dream that she was fired and that everyone was celebrating. The employer opened an official investigation into the text messages and the employee’s claim that she was uncomfortable. Ultimately, the employee failed to provide copies of the text messages. The employer fired her, contending that she had been evasive and untruthful. She filed an EEOC charge and then filed suit alleging that her discharge was retaliatory and violated Title VII. Both parties moved for summary judgment.

Protected activity is question of fact. With regard to the merits of the retaliation claim, the employer argued that the employee did not engage in protected activity. However, the court noted that the employee complained, on multiple occasions, about the drivers engaging in the slamming process, as well as the text messages from the texting driver. She told the operations manager that she had been raped in the past and she showed him at least one of the text messages, which was sexual in nature and made reference to the "Me Too movement." She claimed that the operations manager stated that the message was "disgusting." The court explained that even though the employer attempted to separate the employee’s complaints about the text messages from her complaint about the drivers’ involvement in slamming, those allegations seemed to be "intertwined."

Furthermore, there was evidence that an internal review determined that the employee’s complaint of discomfort to the operations manager should have been reported as a potential violation of the Amazon Sexual Harassment Policy. In light of those facts, the court found that there was at least a question of fact regarding whether her complaints constituted protected activity.

Fired during investigation. Next, the court considered whether the employee presented sufficient evidence of pretext. The employer alleged that she was fired for failing to fully cooperate with its investigation. It provided a list of alleged inconsistencies in her story regarding her relationship with the driver, noted her refusal to provide copies of text messages, and characterized her conversations with supervisors and human resources as dishonest.

However, the court noted, at the time she was fired, the employer only knew that she refused to provide the messages. And, according to the employee, she cooperated with the investigation to the best of her ability, although she contended that it was a "sham." Although the court found her evidence of pretext "scant" and reliant upon her own testimony, it also noted that it was not up to the court to weigh the evidence or assess witness credibility. Furthermore, it noted that the discharge occurred during the investigation of her claims regarding the text messages, which might lead a reasonable jury to conclude that the given reason was pretextual. The question was ultimately one for the jury. The court denied the employer’s motion.

Employee’s motion denied. In the employee’s motion, she argued that Title VII prohibits firing a sexual harassment complainant based upon the manner in which she participates in an ensuing investigation. "Essentially," the court explained, "she argues that termination for this reason establishes an employer’s desire to retaliate as a matter of law." However, she provided no legal authority for the argument and the court noted that the "motivations of an employer are inherently a question of fact." The employee’s motion was denied as well.

The case is No. 3:19-cv-00420.

Attorneys: Constance A. Mann (Law Offices of Constance Mann) for Tina Tenpenny. C. Eric Stevens (Littler Mendelson) for Prime Now, LLC.

Companies: Prime Now, LLC

Cases: Retaliation SexualHarassment Discrimination Discharge TennesseeNews GCNNews

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