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Despite 13-year gap between protected activity and demotion, retaliation claim goes to trial

By Lorene D. Park, J.D.

The first chance a supervisor had to retaliate against a subordinate VP—who was a witness in a sexual harassment suit—was when the supervisor returned to the company nearly 13 years after he left; and he made it clear he remembered the circumstances of his departure, noted a federal court in Alabama. Accordingly, there were triable issues as to a causal link between the long-time employee’s protected activity and his demotion (despite good performance). However, the court granted summary judgment against his fraudulent misrepresentation and other tort claims (Pace v. Alfa Mutual Insurance Co., April 6, 2016, Watkins, W.).

Employee knew “damaging things” about supervisor. The employee started working for the insurance company in 1986 and by 1990 was a senior vice president of marketing. Between 1997 and 2000, he was supervised by an executive VP who became a co-defendant with the employer in a sexual harassment suit. In connection with that suit, the employee was interviewed and deposed. His supervisor asked him what was said. When the employee responded that business trips with the accuser and supervisor came up, including that they shared a hotel room, the supervisor became furious and said he was “through” with the employee.

The woman who accused the supervisor of sexual harassment confided in the employee and he knew “damaging things,” including the supervisor’s business trips with the accuser when she had no business purpose for being there. He also claimed he was present when the supervisor and his accuser plotted to oust the company’s then-president so the supervisor could advance. A subsequent company president testified that after the harassment suit was filed, he told the supervisor he could no longer trust him. The supervisor chose early retirement in October 2000.

Supervisor returns and retaliates. In December 2012, the company elected a new president, who assured the employee there would be no changes to his position and he “had been a bright spot in this organization for years now.” Reassured, the employee turned down opportunities to take other jobs. By this point, his production was up 13 percent—better than all other districts in the organization. However, things changed when his former supervisor, who had supported the new president’s election, was brought back to his old position on February 1, 2013.

The returning supervisor expressed hostility toward the president who ousted him, and told the employee “[B]oy, I bet you thought you’d never have to mess with me again now, didn’t you?” His first week back, he transferred the employee’s assistant to be his own assistant. He told the employee: “[I]f that’s the worst thing I do to you, . . . you’ll be all right.” At a meeting, the supervisor presented a video of the employee from torso down, with his head cut off. Colleagues told the employee he was on the supervisor’s hit list and should go work for another company.

Two-level demotion. In organizational changes that followed, the employee’s position was eliminated and he was demoted two levels to a district manager position he had held 27 years earlier. He complained to the company president that the demotion was motivated by retaliation and that four regional VP positions had been filled with substantially less experienced people. The president initially reassured him but then informed the employee that if he wasn’t happy, he could accept a severance package. The employee resigned on July 22, 2013.

Retaliation claim goes to trial. Moving for summary judgment on the employee’s retaliation claim under Title VII, the employer conceded that his participation in the sexual harassment suit was protected activity and the demotion and resulting pay cut was an adverse action. However, it argued that he failed to show the requisite temporal proximity between the two. To the court, though, there was enough evidence to raise a triable issue as to the supervisor’s awareness of the protected activity and his retaliatory acts at the first opportunity over a decade later. The supervisor left in 2000 and could not retaliate until his return in February 2013. And the day before his return, he made a comment indicating that he had not forgotten the circumstances of his prior departure: “[B]oy, I bet you thought you’d never have to mess with me again now, didn’t you?” The supervisor then engaged in a series of acts that further illustrated his animosity toward the employee. Based on the foregoing, the employee made out a prima facie case.

Furthermore, while organizational changes and the elimination of the employee’s position was a legitimate, nonretaliatory reason for the demotion, there was evidence of pretext. For example, the other individual at the employee’s level whose position was eliminated had been there a very short time and was not in good standing, in contrast to the employee, who was there for 27 years, had received numerous accolades and promotions, and was at the time rating 13 percent higher in production than the prior year. Meanwhile, several lesser-qualified individuals were allegedly promoted to regional-level positions. Accordingly, there was a genuine dispute on whether the supervisor’s real reason for demoting the employee and cutting his pay was to retaliate for his prior participation in the sexual harassment suit. Summary judgment was therefore denied.

No fraudulent misrepresentation. The employee claimed the employer made fraudulent misrepresentations through the latest company president’s remarks that the employee was a “bright spot” in the organization and had “nothing to be concerned about” in the reorganization. Granting summary judgment against this claim, the court found the remarks revealed nothing more than general assurances and there was no evidence that, at the time, the president had the requisite intent to not perform a promised act or that he intended to deceive. Moreover, while the employee claimed he relied on the representations to forego alternative employment, his reliance was not reasonable given that he knew the president did not have authority to hire or fire him and that changes in personnel had previously occurred after a change in leadership.