Quirky Question #284: If a tree falls in the forest and no one hears it, can you still unlawfully retaliate against it?

Question: One of our male supervisors wants to fire a female employee who complained that he was sexually harassing her. The harassment allegations appear to have some substance: he asked her for pictures of herself in a bikini; told her to “stay off [her] knees,” which she viewed as sexual innuendo; and told her that her regulation length shorts were too short. Also, the grounds for termination (driving a vehicle with the door open, creating a safety hazard) have been overlooked in other situations. We are a little worried that she will claim we are retaliating against her for the sexual harassment complaint.  But the supervisor says he never heard about the sexual harassment complaint.  So, if he didn’t know about the complaint, he could not possibly retaliate against her on the basis of that complaint, right?  You could get this case thrown out before it ever went to trial, right?

Answer: By David Trevor

David Trevor

Not so fast. In a recent Third Circuit decision, Kacian v. Postmaster General of the United States, the Court of Appeals reversed summary judgment in favor of the Postal Service and reinstated the retaliation claim for trial, even though there was no direct evidence that the supervisor making the termination decision knew about the sexual harassment complaint that allegedly formed the basis for retaliation.

Kacian, the plaintiff, complained about the incidents described above and several others, including disparaging comments about her weight and a comment implying that a cold sore on her lip might actually be herpes.

Shortly after making the complaint, Kacian was caught driving her postal van across an intersection with the vehicle door open. She admitted doing so when confronted and was terminated almost immediately, solely for that infraction. As a “transitional employee,” she was not entitled to progressive discipline as permanent employees were.  However, there was evidence that other employees had committed similar (or even worse) safety violations and had not been terminated.  A union officer testified that the response to similar infractions was “just sweep it under the rug, and let it go.”  These included driving with the vehicle door open and not wearing a seatbelt, driving with the vehicle door open and feet hanging out the door, and driving a vehicle into a cement wall.  In addition, the only other transitional employee the supervisor had ever terminated was Kacian’s boyfriend.

In the District Court, the Postal Service obtained summary judgment on the retaliation claim, arguing that it is impossible to retaliate against an employee for making a complaint if the decision maker is not even aware of the complaint.

On appeal, the Third Circuit reversed the grant of summary judgment. The Court first found that Kacian’s sexual harassment complaint was made reasonably and in good faith, based on the underlying conduct alleged.  Moreover, despite the lack of direct evidence that the supervisor knew of the complaint, the Court found circumstantial evidence that would justify such an inference.

The circumstantial evidence included “temporal proximity” (meaning the key events occurred close together in time). Here, the supervisor recommended Kacian’s termination only five days after her sexual harassment complaint, and she was terminated only two days after that.  In addition, the disparity between how Kacian was treated for a safety violation and how other employees were treated for similar or more serious violations supported the inference of causation.  Also, the subsequent termination of Kacian’s boyfriend (who was later reinstated after successfully filing a grievance) supported the claim that Kacian was the victim of retaliation.  Finally the Court pointed out the small number of managerial personnel in the office (perhaps indicating that, in such a small office, a sexual harassment complaint would likely be known to every supervisor) and the testimony of the union president that he believed that the supervisor knew of the complaint.

POINTS TO REMEMBER

The case illustrates several factors that employers and counsel advising employers should bear in mind when considering the termination of an individual who has complained of discrimination or otherwise engaged in protected conduct:

• The basis for the underlying complaint of discrimination or harassment is relevant in itself, because, at least in the Third Circuit, the complaint must be “objectively reasonable.” Here, the Third Circuit pointedly highlighted the numerous inappropriate comments by the supervisor in finding that the sexual harassment complaint by Kacian was reasonable and made in good faith;
• Similarly, evidence of differential treatment is relevant to undermine the legitimacy of the stated reason for termination. If Kacian’s driving practices warranted termination, why weren’t other employees fired under similar circumstances?
• In addition to their direct relevance, the merits of a harassment complaint and evidence of disparate treatment may color the Court’s analysis of the causation issue. Courts may look a little harder for circumstantial evidence of causation if the employee appears to have been badly treated;
• In a retaliation claim, temporal proximity between the protected conduct and the adverse employment action, while perhaps not sufficient evidence all by itself, is a critical factor. Kacian was terminated only seven days after her protected conduct;
• Circumstantial evidence is largely in the eye of the beholder, but more is better. The Third Circuit pointed to multiple circumstantial factors as supporting an inference of causation. No one factor may have been sufficient in and of itself, but the evidence as a whole was sufficient to reverse summary judgment.
• Ultimately the case highlights the need for significant caution in circumstances where retaliation claims are a risk. If an employee has complained of discrimination or harassment, particularly recently, the employer must be very careful to avoid termination for “thin” reasons, especially where other, non-complaining individuals have committed similar offenses without being terminated.