Monday, April 20, 2009

Timing Between Harassment Complaints and Termination Insufficient to Maintain Claim of Retaliation

Although the employee made valid internal complaints of harassment, the court found that her subsequent termination did not support her legal claims of sexual harassment or retaliation under Title VII.

Betty Pinkerton had performance problems while working for the Colorado Department of Transportation work resulting in a number of meetings with management. Her performance continued to suffer while she worked for a new supervisor named David Martinez. To avoid termination, Pinkerton agreed to a transfer. Close to the same time that Pinkerton faced termination connected with her performance problems, she claimed that Martinez directed sexual comments towards her. While the Department investigated Pinkerton’s claims, Pinkerton decided to remain in her position. The Department resumed its disciplinary action against Pinkerton and terminated her employment for poor performance. At the conclusion of the sexual harassment investigation, the Department decided to demote Martinez.

Pinkerton sued the Department for sexual harassment and retaliation. The trial court entered summary judgment in favor of the Department. On appeal, the Tenth Circuit affirmed the entry of summary judgment.

Regarding the harassment claims, the appellate court found that the Department had taken prompt remedial action after learning about Pinkerton’s allegations harassment. The court also found that any allegedly biased reports from Martinez did not affect the Department’s decision to fire Pinkerton.

On Pinkerton’s retaliation claim, the court found that she lost her job for poor performance, not complaining about harassment. The court found that the Department’s reason was not a pretext for retaliation because the Department had placed the termination proceedings on hold when Pinkerton initially decided to accept the transfer. When Pinkerton changed her mind about the transfer, the Department resumed the termination proceedings.

There are lessons for both employers and employees in this case. Employers, make sure that you have well-written anti-harassment policies. Also, when complaints of harassment come to the surface, be sure to launch thorough investigations. Pinkerton's retaliation claim presented a serious problem for the employer. Dealing with a problem employee who happens to raise claims of harassment is a difficult situation. Before taking disciplinary action, you need to consult with your employment counsel.

Employee, if you are subject to harassment in the workplace, take a look at your company's policy and follow it. Complaining to a friend will not help you. If you are confronted with disciplinary action following the presentation of claims of harassment, you need to consult with an attorney to determine whether your rights have been violated.

See: Pinkerton v. Colorado Dept. of Transp., (10th Cir. Apr. 16, 2009)

Saturday, April 18, 2009


This is to welcome you to my Labor and Employment Law Blog. Several months ago I started a blog, but the focus dealt with faith related matters instead of work. Rather than combining faith issues and employment law in the same forum, I decided to launch this blog dealing with employment law.

Some people ask, what is employment law. In a nutshell, employment law involves legal issues surrounding the employment relationship.

The following information provides a good overview of what employment law is all about:

· Wage and Hour-Employers are required to fairly compensate employees for time worked; this includes overtime pay for hourly employees who work over 40 hours in a week and providing wages that at least meet the minimum wage. If you have not received adequate pay for time worked, or have not received legally mandated time off for breaks, you may be able to take legal action against your employer.

· Sexual Harassment-Employees have a right to work in an environment free from harassment. Sexual harassment can come in the form of sexual jokes or innuendos, unwanted sexual advances, inappropriate touching, and sexual favors in exchange for promotions or other job benefits. Employers must make sure they provide employees with a safe work environment. If you have been the victim of sexual harassment in the workplace by a superior or fellow employee, an employment law attorney can tell you what kind of legal recourse may be available to you.

· Discrimination-Discrimination takes place whenever someone is not given a job, promotion or raise based on the color of their skin, age, national origin, religion, or sex. When job performance and experience are not the sole criteria for career advancement, discrimination may have taken place. If you suspect your employer of discriminatory hiring practices, contact an employment law attorney.

· Whistleblowing-Whistleblowers are people who alert the authorities to the illegal or unethical practices of their employer. Oftentimes, whistleblowers lose their jobs or suffer other serious consequences for taking action against their employer. Such retaliatory action from an employer is generally prohibited in most cases of Whistleblowing. If you believe your employer is participating in illegal activity, it is important to speak with an employment law lawyer to make sure your rights are protected.

· Wrongful Dismissal-Wrongful dismissal occurs when a person loses his or her job in a way that breaches the terms of his or her contract. This area of law can be tricky, so it is important to have an attorney on your side who understands employment law at both the state and federal level.

If you have a problem in the areas of Labor and Employment Law, do not hesitate to call me, Rich Bradford, at Bradford & Bradford, (813) 413-2402.