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)

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