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Firing employee who had prior consensual relationship with supervisor plausibly discriminatory

By Marjorie Johnson, J.D.

An employee purportedly fired for expense report violations regarding an overnight trip with a male supervisor with whom she was having a consensual affair avoided dismissal of her gender bias claim, since it was unclear whether the supervisor was fired for the same misconduct and she sufficiently alleged that similarly situated male peers were treated more favorably. However, a federal court in Pennsylvania tossed her claim that she was also discriminatorily denied her request to transfer away from the supervisor after they split up, since it was time-barred and outside the scope of her EEOC charge (Misiolek v. The Hershey Co., June 12, 2017, Jones, J.).

Business trip. After working for Hershey for about 13 years as an industrial engineer, the employee began a consensual romantic relationship with her supervisor in September 2013. As part of her job duties, she was required to travel with him to represent the company’s business interests domestically and abroad. In February 2014, the pair traveled to New York City for an overnight business trip prior to departing on official business to India. At the supervisor’s express direction, she expensed the cost of both the hotel and the meals in NYC to Hershey.

Post-breakup transfer request denied. The supervisor reported their consensual relationship to HR a few months later, but neither HR nor executive-level management ever spoke with her about the situation. And while the supervisor had told her that an imminent corporate restructuring would result in one of them being transferred to a different unit within the company, the restructuring never occurred. By August the pair had agreed to end their relationship, but the employee felt increasingly uncomfortable working under him. Her subsequent requests for a transfer were denied, even though internal transfer requests by senior-level male employees had been routinely approved.

Fired for policy violations. On October 27, she was questioned by HR regarding the expense reports submitted pursuant to the NYC business trip back in February, at which time she was suspended for two weeks pending further investigation. She was terminated two days later, and her supervisor was also fired shortly thereafter. She believed the basis for her discharge was her purported violations of the company’s consensual relationship policy, travel expense policy, and code of business ethics.

She brought the instant action asserting that the denial of her transfer requests and termination amounted to gender bias under Title VII and the Pennsylvania Human Relations Act. In addition to denying any wrongdoing warranting discharge, she claimed that her male peers were not terminated for similar violations, but were instead given the opportunity to remit the amount of the alleged transaction that violated the expense policy.

Transfer denial outside scope of charge. The employee was unable to pursue her claim that she was discriminatorily denied her transfer requests since it fell outside the statutory 300-day window and was not within the scope of her EEOC charge. In considering whether the EEOC was afforded an opportunity to investigate her claims that her requests for transfers were denied with discriminatory intent, the court noted that her charge “scantly” alleged that, “Employer questioned and investigated a lawful, consensual romantic relationship with supervisor against which the employer had no policy. I was terminated as a result of this relationship.”

Moreover, her charge did not mention the denial of her requests for transfer, or provide any indication to the EEOC that she had even requested a transfer. She also didn’t claim that her transfer requests surfaced at any point during the course of the EEOC investigation. Thus. since she made no factual allegation in support of her assertion that the denials of her requests constituted a continuing course of discriminatory conduct within the scope of the EEOC’s investigation, she was precluded from raising the denials in relation to her discrimination claims going forward.

Inference of bias. However, the court rejected the company’s substantive arguments challenging her gender bias claim as to her termination. It first argued that no reasonably inference of bias could made for purposes of her prima facie case since it terminated her male supervisor for the same violations as the employee. However, this argument was misplaced since it required the court to look beyond the facts of the employee’s complaint to determine the basis for the supervisor’s discharge, which it could not do at this early stage in litigation. While the employee alleged that the supervisor was also fired “for misconduct,” she did not provide additional facts regarding when or why he was terminated, and would be improper to presume at this stage that he was indeed fired for the same misconduct as her.

Similarly situated males. Hershey’s assertion that the employee failed to sufficiently allege that similarly situated males were treated more favorably also fell flat. She identified the names of several men in senior management positions who she claimed committed violations of Hershey’s expense reporting policies and/or code of business ethics but were not terminated. Instead, they were purportedly “given the opportunity to remit to Hershey the amount of the alleged transgression” and did not suffer any further adverse employment action. This was enough to survive a motion to dismiss.