Monday, November 21, 2016

7th Circuit Calls a Close One for Employer on Retaliation Claim

It must have been a close call when the 7th Circuit affirmed summary judgment last month for an employer in a retaliation claim. In Lord v. High Voltage, Inc., the plaintiff was discharged for, among other reasons, not reporting harassment in a timely manner as previously directed. The unusual part of this decision is that the plaintiff waited only one week between the period of time of the alleged harassment before reporting the incidents. It really makes you think that there must have been something more going on there.

Defendant develops gaming software and employed Ryan Lord as associate producer. In January 2007 he complained to HR that his male co-workers had created a hostile work environment by teasing him about a female engineer who also worked there. HR investigated the complaint and concluded that the actions did not arise to sexual harassment but directed him to promptly report any future incidents of harassment. [NOTE: encouraging employees to promptly report harassment is a pretty routine statement that employers make.] Plaintiff was transferred to a different work group to give him a fresh start in the company. In that new work group, plaintiff was assigned to share a work space with co-worker Nick Reimer.

According to the plaintiff, during the week of July 19 through the 27th of 2007, his co-worker Reimer engaged in allegedly harassing conduct by, among other things, slapping his buttocks and grabbing him between the legs. On July 30th the plaintiff reported this conduct as harassment to HR.

During that same period of time, plaintiff’s supervisor issued a written reprimand to plaintiff and co-worker Reimer for an unrelated work problem. The plaintiff, believing he was wrongly held responsible for the problem accused the company of retaliating against him for reporting sexual harassment by a coworker and also said he was “very close to filing a complaint with the Illinois Department of Human Rights and the Equal Employment Opportunity Commission.”

Although the supervisor withdrew the discipline against the plaintiff, the company discharged the plaintiff two days after he made his harassment complaint for failing to immediately report the alleged harassment, insubordination in accusing the company of retaliation and for “obsessively tracking” the performance of co-workers (the opinion gives no further facts on that issues).  The plaintiff filed a retaliation claim, alleging he was discharged for complaining about the inappropriate actions of his co-worker.

In finding in favor of the company, the court acknowledged that suspicious timing of an adverse employment action in relation to an employee complaining of unlawful conduct can be evidence of retaliatory conduct. This is true even if, as was the case here, the complained of behavior was not actually unlawful (the co-workers behavior, while likely totally inappropriate, was not based on sex, so was not protected by sexual harassment prohibitions).

The court apparently found compelling that the plaintiff had a couple of opportunities to make a report of his complaints prior to his July 30th complaint to HR of unwelcome behavior, in violation of his previous directive to immediately report incidents of harassing behavior.

Sometimes court opinions don’t give a reader the full flavor of a case. The facts of this case seem to beg for a trial to determine the true motives and actions of the parties. Employers should read this case as a cautionary tale. It appears that the decision could have easily gone the other way. One can only assume there was much more to this story and that the employer documented issues with the employee along the way, which can make all the difference in a case that could be a close call.