Misconduct, not retaliation, led to worker’s termination

An employer was granted summary judgment against hostile work environment and retaliation claims filed by a former employee who reported sexual harassment by a co-worker but admitted she leveraged an offensive video to “elicit a cash payment” from the harasser.

The employer had a legitimate, nonretaliatory reason for firing the plaintiff because her conduct violated its Code of Business Ethics, according to a ruling from the Eastern District of Virginia.

The plaintiff put forth several arguments, including that her former employer unreasonably “over-corrected” the problem by firing her and that a deficient investigation of her sexual harassment claim showed the reasons for her termination were pretextual.

U.S. District Judge Patricia Tolliver Giles rejected those claims.

The defendants “took immediate steps to investigate and remedy the [plaintiff’s] situation” and “plaintiff’s criticisms about defendants’ investigation merely amount to allegations of the ‘folly of [the employer’s] business judgment,’” Giles wrote.

The Jan. 24 decision is Taylor v. Washington Gas Light Company, et al. (VLW 022-3-030).

Taylor’s attorneys did not respond for comments before deadline. Attorneys for Washington Gas declined to comment.

The incident

Cynethia Taylor and Dwayne Briscoe, a peer-level co-worker, worked at Washington Gas Light Company.

According to the opinion, Briscoe, visibly sexually aroused, approached Taylor at her desk and said “See what you do to me.”

Taylor began filming the encounter on her phone. She refused Briscoe’s request to delete the video, and told him she would post it online or on social media.

A short time later, Briscoe again approached Taylor’s desk while she was looking at shoes online. He asked how much they cost; Taylor nodded her head toward the price, which was about $160. Briscoe left and returned with $160 in cash, threw it on Taylor’s desk and walked away. Taylor put the cash in her wallet.

About a week later, Taylor reported the incident to her supervisor Tamara Neal, saying she had been subjected to similar incidents and comments from Briscoe in the past. Taylor then showed Neal the video.

Neal told her to make a report with human resources, but Taylor said she didn’t want Briscoe to lose his job. She then told Neal about the $160.

The investigation

Neal reported the incident to human resources the next day, and an investigation commenced. Briscoe and Taylor were interviewed by an employee relations manager and a senior labor relations specialist. Briscoe was suspended pending the conclusion of the investigation.

The investigation summary said Briscoe violated Washington Gas’s sexual harassment policy, and he was fired on Feb. 18, 2020.

As for Taylor, the investigation summary concluded that she “intentionally recorded a video of Briscoe’s condition and used it as leverage to elicit a cash payment.” The report also said Taylor’s conduct “was wholly improper, arguably constituted extortion, and violated the Company’s core value of acting with integrity.”

Her prior disciplinary record was also considered by human resources. Taylor had been written up before and received a written warning that further incidents of unprofessional conduct would result in disciplinary action, including termination of employment. Taylor also was fired on Feb. 18.

The complaint

Taylor filed a charge of discrimination with the EEOC, and timely filed her complaint after receiving a Notice of Right to Sue.

Taylor brought claims for hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964. She said she was subjected to a hostile work environment because of Briscoe’s sexually harassing conduct and because she was fired after making a report.

Washington Gas filed a motion for summary judgment after the District Court denied their motion to dismiss the hostile work environment claim.

Hostile work environment

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

While Taylor claimed Washington Gas did not respond to her sexual harassment complaint with “a reasonable approach to stop the harassment,” Giles said the record showed the opposite.

Washington Gas took “immediate steps to investigate and remedy the situation” in response to Taylor’s report of sexual harassment.

“Indeed, the record shows that Washington Gas’s response was effective at preventing future harassment because, as Plaintiff acknowledges, she did not experience additional instances of sexual harassment after she reported Briscoe’s inappropriate conduct to her supervisor,” Giles pointed out. “Because Defendants’ remedial action ‘effectively stop[ped] the harassment,’ it is ‘deemed adequate as a matter of law.’”

The judge then said Taylor’s argument that defendants “over-corrected the problem by removing the alleged victim of harassment from the workplace” was misplaced as a basis for assigning liability to the employer.

Here, Washington Gas only learned of Briscoe’s behavior after Taylor told her supervisor.

“Washington Gas took ‘effective action to stop’ the harassment by suspending and ultimately firing Briscoe in response to Plaintiff’s report of sexual harassment” the judge wrote. “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

The judge analyzed Taylor’s claims under the McDonnell Douglas burden-shifting framework.  Plaintiffs must establish a prima facie case by showing that they engaged in protected activity, that the defendant took adverse action against them, and that a causal relationship existed between the protected activity and the adverse employment activity.

The burden then falls to the defendant to show that it had a legitimate, nonretaliatory reason for taking an adverse action. Finally, the burden shifts back to the plaintiff to rebut the defendant’s evidence by showing that its claimed nonretaliatory reason was not the true reason, but was a pretext for discrimination.

Here, the defendants did not dispute that Taylor 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. But the defendants argued there wasn’t enough evidence to show that a causal relationship existed between the protected activity and the adverse employment activity or that Washington Gas’s stated reason for terminating Taylor 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,” Giles said. “Such temporal proximity sometimes is sufficient to support an inference of causation between Plaintiff’s protected activity and termination.”

In this case, though, the judge said Taylor reported her own misconduct — accepting cash from Briscoe after recording the video of him and saying she would post it online — 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,” Giles wrote. “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 Taylor had established a prima facie case of retaliation, the defendants produced “persuasive and sufficient evidence of a legitimate, nonretaliatory reason” for firing her because she “used the video recording as ‘leverage to elicit a cash payment from [Briscoe.]’”

Finally, Giles found it was reasonable for defendants to conclude that Taylor violated its Code of Business Ethics based on her own account and her record of prior discipline. Her criticisms about the defendants’ investigation were “insufficient to ‘raise an inference of deceit.’”