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Fired hours after complaining of office atmosphere, rifle display, employee gets second shot at retaliation claim

By Kathleen Kapusta, J.D.

Reviving the federal and state-law retaliation claims of an employee fired hours after complaining about “the treatment in the office,” including how her county prosecutor boss had displayed a rifle and said “Don’t worry. I’m not that mad, ha, ha, ha, ha,” the Sixth Circuit, in an unpublished opinion, found she raised a fact dispute precluding summary judgment. The appeals court, however, affirmed the dismissal of her hostile work environment, termination, and intentional infliction of emotional distress claims. In a partial concurrence and partial dissent, Judge Moore stated that she would have reversed the lower court’s opinion in its entirety (Daniels v. Pike County Commissioners, August 29, 2017, Daughtrey, M.).

Sixteen years after she was hired by the county prosecutor as a secretary, the employee moved into a victim’s-advocate/witness-coordinator position, enjoying a generally good working relationship with him. That changed, however, after he implemented rules designed to improve professionalism in the office, including that staff work five eight-hour days (8:30 a.m. until 4:30 p.m.)—rather than four 10-hour days—that employees clock into and out of work each day, that staff no longer wear blue jeans or flip-flops in the office, and that office computers be used for business purposes only.

That’s the way we like it. But these new rules, the employee alleged, were enforced in a discriminatory manner as male employees did not have to work the same hours, were not subject to the same dress code, and did not have to clock in and out. She also claimed her boss checked the search histories only on computers used by the female staff and once while walking among them said, “So did everybody get punched in? Everybody working. Nobody whining. That’s the way we like it.” Further, the male worker who replaced the employee after she was terminated claimed he heard the prosecutor make comments such as “That’s why I don’t like to hire women,” That’s why it is a pain to hire women,” and “Working with men is so much easier than working with women.”

I’m not that mad. Shortly before she was fired, the employee alleged, she looked up from her desk, saw the prosecutor holding an AR-15 rifle, and heard him say “Don’t worry. I’m not that mad, ha, ha, ha, ha.” Not long after, she went to the county courthouse as part of her duties and while there spoke with a victim’s advocate and a sheriff’s deputy, recounting the gun incident and “all the changes and treatment in the office.” She was fired just a few hours later because of the statements she made and because of her job performance and attitude.

The employee sued under Title VII and state law for creation of a hostile work environment, termination on the basis of gender, retaliation, and intentional infliction of emotional distress. The district court granted summary judgment against all claims.

Hostile work environment. Addressing on appeal her hostile work environment claim, the Sixth Circuit first noted that not all of the challenged employment actions taken by the prosecutor were based on sex. While male employees worked different hours and were not subject to the same dress code, this was a result of different job functions and responsibilities as the male employees worked outside of the office and had jobs that entailed physical labor.

Other acts by the prosecutor, however, could be construed as evidence of anti-female animus, including checking the search histories on only the women’s computers, stating in front of members of the public that he needed to check on the women to ensure they were working, expressing gratitude to the female staff that they were working and not whining, and making comments that he didn’t like to hire women and preferred working with men. None of this conduct, however, was severe or pervasive enough to create a hostile work environment, said the court, noting that even the rifle incident “was not as severe as it might otherwise have been in a different scenario given the fact that the record established that guns were regularly carried (and presumably displayed) in the prosecutor’s office.” Thus, the district court did not err in granting summary judgement on this claim.

Termination. As to the employee’s claim she was terminated based on her gender, the court noted that while she established a prima facie case of discrimination, the prosecutor offered a legitimate reason for his decision—the statements she made about him and her poor job performance and attitude. Because she failed to offer any evidence of pretext, summary judgment was properly granted on this claim as well.

Retaliation. Turning to the employee’s retaliation claim, the court noted the prosecutor readily admitted one of the reasons he fired the employee was because she proved to be “disloyal” by making statements about him and the office atmosphere. Although he attempted to temper that assertion by claiming her job performance, attitude, and constant arguing also contributed to the termination decision, he conceded he had no immediate plans to fire her before she made those statements. Under these circumstances, said the court, the employee succeeded in offering direct evidence of retaliation to the extent that her conversation with the individuals at the courthouse could be considered protected activity.

While the district court found her statements to these individuals were vague charges of discrimination, the appeals court disagreed. Her deposition testimony stated she discussed “all the changes and the treatment in the office” with them and disclosed “everything” to them encompassed more than her mere disagreement with “office policies and managerial style,” said the appeals court, finding her deposition was replete with allegations of differing treatment of male and female employees, of efforts to harass and belittle women, and of an intimidating atmosphere that the women were forced to endure on a daily basis. Thus, the court found the employee engaged in protected activity when discussing the culture and atmosphere of the office. Combined with the prosecutor’s admission that he terminated her because she made these statements, there was at least a fact dispute precluding summary judgment on this claim.

Dissent. Although Judge Moore agreed that summary judgment was inappropriate as to the retaliation claim, she dissented from the majority’s conclusion that it was appropriate with respect to the other claims. She argued that the employee pointed to sufficiently severe and pervasive examples of sexual harassment, including conduct in which the prosecutor treated women in a humiliating fashion and one “particularly egregious example” of conduct that was physically threatening. As to the employee’s termination claim, the dissenting judge found genuine issues surrounding pretext, including the prosecutor’s disparaging comments toward women such as “That’s why I don’t like to hire women,” “That’s why it is a pain to hire women,” and “Working with men is so much easier than working with women.” Further, she argued, there was sufficient evidence of the prosecutor’s intent to cause distress to permit a reasonable juror to find in the employee’s favor on her IIED claim.