Monday, October 13, 2008

Spurned employee loses retaliation lawsuit for lack of protected activity


Alshafi Tate cleaned offices for Executive Management Services. He also 250px-GeorgeCostanza had a year-long sexual relationship with his supervisor, Dawn Burban. Indeed, according to Tate, he and Burban had consensual sex two or three times per week, sometimes at work and other times at the home of a co-worker.(1) Tate decided to end the relationship after he got married, but Burban would repeatedly call his home, and would tell him that if the relationship ended, he would lose his job. When Tate rejected her ultimatum, Burban instigated an altercation that ultimately led to his termination for insubordination.

Tate sued the company for sexual harassment and retaliation. A jury found against Tate on the harassment claim, but in his favor on the retaliation claim. Despite the favorable verdict on the retaliation claim, the jury awarded him $0 in compensatory damages. The judge later awarded him $7,830 in back pay, and his lawyers $65,129.39 in fees and costs.

EMS appealed the verdict on the retaliation claim. In Tate v. Executive Mgmt. Servs., Inc. (7th Cir. 10/10/08), the 7th Circuit reversed the verdict on the retaliation claim, finding that Tate had not engaged in a protected activity:

In order to engage in protected conduct, Tate only has to show that he reasonably believed in good faith the practice he opposed violated Title VII. ...

Even if we assume, for purposes of argument, that there may be circumstances in which a person who rejects his supervisor's sexual advances has engaged in a protected activity, Tate has not shown that he "reasonably believed in good faith the practice [he] opposed violated Title VII." ... There is simply no evidence in the record that Tate believed that Burban's actions were unlawful. In fact, the only statements that Tate made to Burban were that they "were not good with each other" and he "was not messing with her anymore," statements which do not indicate that Tate believed he was being sexually harassed. ...

We do not dispute that Tate protested about Burban's behavior; the problem is that he did not necessarily believe that her behavior was illegal at the time. ...

The Court dodged the real issue - whether a person who rejects a supervisor’s sexual advances has engaged in a protected activity. More often than not, I think they would be.

This case, however, points out the importance of character in employment cases. An employment lawsuit often is a morality play, and the judge and jury will determine the case on the character of the actors. Did the employee perform worthy of keeping his or her job? Did they employee behave as the jurors would have in his or her situation? Did the employer treat the employee fairly? Did the employer treat the employee as the jurors would have liked to be treated?

In this case, there is little doubt that the jurors punished Tate for what it perceived as amoral behavior. He slept with his boss, cheated on his wife, and then sued only when it backfired on him. He was not a sympathetic character to whom the jury could relate. While the jury may have believed that the employer did not fairly treat him, they were more put off by Tate's own misconduct. Thus, the zero dollar verdict, and the appellate opinion that skirted the real issue.


(1) I'm reminded of the following exchange from the Seinfeld episode, The Red Dot:

Mr. Lippman: It's come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?
George: Who said that?
Mr. Lippman: She did.
George: Was that wrong? Should I not have done that? I tell you, I gotta plead ignorance on this thing, because if anyone had said anything to me at all when I first started here that that sort of thing is frowned upon... you know, cause I've worked in a lot of offices, and I tell you, people do that all the time.

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