Category Archives: Sexual Harassment

Employee’s Retaliation for Reporting Sexual Harassment Claims Proceed to Trial

When an employee complains that the employee is experiencing sexual harassment at the workplace, makes formal complaints about sexual harassment and is terminated shortly thereafter, an employee has a viable retaliation claim under federal and state law. In Betz v. Temple Health Systems. E. D. Pa. (January 13, 2016) (Pappert, J.), the court recently ruled in favor of an employee, finding that the employee’s retaliation claims should proceed to trial

In Betz, the employee, a registered nurse, repeatedly complained to her supervisors and executive management about persistent sexual harassment, inappropriate touching and groping and at least one instance where the sexual activity was directed at the employee when someone came up and grabbed her right in the back of her butt with a full hand. On one occasion when the employee complained, her manager responded “Come on. You know this is how my girls play.'” After another employee was terminated at the workplace, a manager told the employee, “i]f you don’t shut your mouth, you’re next.”
The employer investigated the employee’s allegations and determined that the employee’s complaints did not amount to sexual harassment or retaliation. After the employee concluded that her complaints were not addressed, the employee filed a Charge of discrimination with the Equal Employment Opportunity Commission. Shortly thereafter, the employer suspended and then fired the employee. The employer alleged that the suspension and termination were not in retaliation for the employee’s complaints, but rather the result of a serious medical error that the employee committed, which she subsequently attempted to hide by altering patient records.

Federal and state laws prohibit retaliation. It is an unlawful employment practice for an employer to discriminate against an employee because the employee has opposed any practice made an unlawful employment practice. To establish a prima facie case of retaliation, an employee must show that: (1) the employee engaged in protected conduct; (2) the employee was subject to an adverse employment action subsequent to such activity; and (3) that a causal link exists between the two. Temporal proximity between the protected activity and the adverse employment decision may be considered evidence of causation when the timing is close. Where temporal proximity is not unusually suggestive of a retaliatory motive, other evidence may include, but is not limited to, a pattern of antagonism by the employer that could link the adverse action with the employee complaint. Once the employee establishes a prima facie case of retaliation, the burden then shifts to the employer to provide a legitimate non-discriminatory reason for the employer’s action; the employer’s stated reason must simply permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision.

Once the employer has met its evidentiary burden of articulating a legitimate nondiscriminatory purpose for the termination of employment, the employee must provide direct or circumstantial evidence of pretext with sufficient probative force from which a jury could reasonably either: “(1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action The second method requires the employee to point to evidence with sufficient probative force that a jury could conclude by a preponderance of the evidence that retaliation was a motivating or determinative factor in the employment decision.

In Betz, the court found that the employer’s statements in combination with the relatively short timeframe between the filing of the employee’s EEOC charge and her suspension formed the basis for establishing a prima facie case of retaliation under Title VII and the PHRA. The court also found that the employer’s proffered reason was sufficient to allow a factfinder to conclude that the employer suspended and terminated the employee for a legitimate non-discriminatory reason. Then the court found there was sufficient evince of pretext because a factfinder could reasonably draw such a conclusion because a manager told the employee that she would be fired because if she kept on complaining, and that “[i]f you don’t shut your mouth, you’re next because you already complained and we’re sick of hearing from you”; and after the employee filed her EEOC Charge, the manager told her that she “made a big mistake by going to the EEOC.”

In rejecting the employer’s motion for summary judgment on the retaliation claims, the court noted that deciding in favor of the employer would involve assessing the credibility of the witnesses and weighing the evidence which is not the court’s role. Thus, the court ruled that the employee’s retaliation claims would be decided by a jury at a trial.

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Filed under Retaliation, Sex / Gender Discrimination, Sexual Harassment