Employee was terminated for misconduct, not retaliation

Where a former employee admitted she accepted $160 in cash from a co-worker after recording an offending video of him and stating she would post it online, and her employer concluded that she used the recording as “leverage to elicit a cash payment from him” in violation of its Code of Business Ethics, her conduct was the legitimate, non-discriminatory reason for her termination.

Background

Cynethia Taylor was employed by Washington Gas Light Company. She asserted claims for hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964. Essentially, plaintiff alleges that she was subjected to a hostile work environment because of the sexually harassing conduct committed by a co-worker and because she was terminated upon making a report. Washington Gas has filed a motion for summary judgment.

Hostile work environment

If an employee is subjected to harassing conduct by a non-supervisory co-worker, then the employer can only be held liable for the nonsupervisory co-worker’s conduct if her “employer knew or should have known of the harassment and failed ‘to take prompt remedial action reasonably calculated to end the harassment.’”

Here, in response to plaintiff’s report of sexual harassment, Washington Gas took immediate steps to investigate and remedy the situation. According to the undisputed facts, Washington Gas responded to plaintiff’s Feb. 5 complaint by initiating an investigation into Briscoe’s conduct on or before Feb. 7, interviewing him February 7, suspending him pending the conclusion of the investigation and ultimately terminating his employment February 18. These actions were prompt and sufficient to prevent future instances of Briscoe’s sexual harassment in the workplace.

Plaintiff argues that Washington Gas’s response was unreasonable because it included the suspension and termination of plaintiff, in addition to her alleged harasser. In effect, plaintiff’s argument is that defendant over-corrected the problem by removing the alleged victim of harassment from the workplace. This argument, however, is misplaced as a basis for imputing liability to the employer. Thus, Briscoe’s inappropriate conduct is not imputable to Washington Gas, and plaintiff’s hostile work environment claim fails as a matter of law.

Retaliation

Defendants do not dispute that plaintiff was engaged in a protected activity when she reported Briscoe’s inappropriate conduct to her supervisor or that Washington Gas took adverse action against her by terminating her. However, defendants claim that there is insufficient evidence to show that: (1) a causal relationship exists between the protected activity and the adverse employment activity and (2) Washington Gas’s proffered reason for plaintiff’s termination was a pretext for retaliation.

It is undisputed that Washington Gas suspended and ultimately terminated plaintiff almost two weeks after she reported Briscoe’s sexual harassment. However plaintiff reported her own misconduct—her acceptance of $160 in cash from Briscoe after recording the offending video of him and stating she would post it online (which Washington Gas cites as the reason for her termination)—at the same time that she told her supervisor about Briscoe’s behavior. Plaintiff’s simultaneous self-report of her own questionable conduct belies an inference of causation between plaintiff’s protected activity and termination due to temporal proximity alone. Given these facts, it is not clear that plaintiff can show a causal connection sufficient to establish a prima facie case.

Even assuming, for the sake of argument, that plaintiff had established a prima facie case of retaliation, defendants have produced persuasive and sufficient evidence of a legitimate, nonretaliatory reason for plaintiff’s termination. Essentially, Washington Gas asserts that it terminated plaintiff’s employment because its investigation found that plaintiff used the video recording of Briscoe as “leverage to elicit a cash payment from him.” Washington Gas also cited plaintiff’s history of inappropriate behavior.

Plaintiff argues that that defendants’ reasons are pretextual because their investigation’s findings are not supported by evidence. However, it was reasonable for Washington Gas to conclude that plaintiff violated its Code of Business Ethics based on the plaintiff’s own account of accepting cash from Briscoe and her record of prior discipline—which, as discussed above, preceded plaintiff’s report of sexual harassment and was documented at the time. Plaintiff’s criticisms about defendants’ investigation merely amount to allegations of the “folly of [the employer’s] business judgment,” and are insufficient to “raise an inference of deceit.”

Defendant’s motion for summary judgment granted.

Taylor v. Washington Gas Light Company, Case No. 1:20-cv-01390, Jan. 24, 2022. EDVA at Alexandria (Giles). VLW 022-3-030. 14 pp.