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Employee fired for photographing intoxicated CEO, not for reporting sexual harassment

By Kathleen Kapusta, J.D.

Although an employer had difficulty explaining exactly how an employee’s conduct violated any of its policies cited in her termination letter, this was not sufficient to show pretext, a federal court in Illinois stated, observing that “it is not absurd that taking photos of an intoxicated CEO in her hotel room at a work event will not fit neatly into a violation of corporate policy.” Granting summary judgment against the employee’s Title VII retaliation claim, in which she alleged she was terminated for reporting the sexual harassment of another employee, the court found it undisputed she was fired for engaging in unacceptable and inappropriate behavior (Donley v. Stryker Corp., January 6, 2017, Kocoras, C.).

Say cheese. While attending a meeting in Vail, Colorado, in May 2014, the medical technology company employee escorted the CEO of a valued vendor to her room when she started slurring her words after dinner and drinks in the hotel bar. Once in the room, the employee took pictures of the CEO with her company-issued cell phone, which she later showed to several of her coworkers. The parties disagree as to whether she showed her supervisor the photos that night.

Complaint. A month later, the employee complained to the HR director about a regional manager’s inappropriate behavior toward a female sales rep, including touching her, making inappropriate comments about her, and inviting her to his cabin. After an investigation, the manager was offered a severance agreement of almost $30,000, purportedly to strengthen his noncompete agreement, and terminated.

Termination. Within days of the manager’s termination, the company purportedly learned of the events in Vail during another employee’s exit interview. The employee was fired two weeks later for inappropriate conduct and poor judgment in violation of four company policies. Claiming she was really fired because she reported the alleged sexual harassment, she sued, asserting retaliation in violation of Title VII.

When did it know? The employee first argued it was disputed as to when the company learned about the events in Vail. She claimed it knew of the photos well before she made the sexual harassment complaint and months before she was terminated. For its part, the company contended that it was immaterial as to when it learned of the photos because her supervisor, the alleged decisionmaker, had no knowledge of her sexual harassment complaint when he decided to terminate her and thus he could not possibly have had any retaliatory motive.

Here, the court found that even assuming he made the decision to terminate the employee together with the HR director, which the company disputed, in addition to the undisputed fact he lacked knowledge of her complaint, there was no evidence the HR director harbored any retaliatory animus toward the employee. Accordingly, whether the company learned of the photos before or after the employee filed her sexual harassment complaint was “a distinction without a difference.”

Severance agreement. While the company asserted that the employee failed to show it retained any other worker who engaged in conduct similar to that at issue, the employee argued that the manager whom she had accused of sexual harassment was given a severance agreement of nearly $30,000 and she was not offered the same, even though she also had signed a noncompete. However, said the court, she failed to show she and the manager were directly comparable as there was evidence he occupied a more senior position, reported to a different supervisor, and was terminated for different conduct by a different decisionmaker.

Suspicions timing. As to the employee’s argument that the timing of the decision to terminate her so soon after her sexual harassment complaint was enough to establish a causal link, the court pointed out that the case law is clear: “suspicious timing alone rarely is sufficient to create a triable issue.”

Pretext. Finally, the court rejected the employee’s argument that the company’s inability to explain how she violated the policies cited in her termination letter would allow a jury to reasonably infer its asserted justifications for her termination were false. Noting that the company consistently spoke with one voice regarding the reason for her termination—she was fired because she took inappropriate images of the intoxicated CEO of a valued company vendor in her hotel room—the court found these facts did not demonstrate pretext or create a fact dispute. Rather, said the court, the evidence demonstrated that the decisionmakers honestly believed that termination based on conduct that the employee “admitted to have engaged in,” along with her termination letter, which “stated in part that the decision to terminate [her] employment was made as a result of her inappropriate conduct and” poor judgment, supported the conclusion that the company terminated her because she took photos of an intoxicated CEO at a work event, endangering the CEO’s reputation and that of the company.