Thursday, October 2, 2008

A second opinion on terminating the chronic complainer

There is perhaps nothing scarier to an employer than an at-risk employee who complains about discrimination. Many employees complain because they think it affords them some level of job protection, and many employers become gun shy in pulling the trigger for fear of a retaliation lawsuit.

A couple of months ago, I discussed Butler v. Alabama Dept. of Transportation, which gave employers hope that all is not lost when considering terminating a chronic complainer. Magyar v. Saint Joseph Regional Medical Center (7th Cir. 9/12/08) provided a different take on this issue, and serves as a cautionary tale for companies that want to terminate an employee who complains about discrimination.

Jessica Magyar worked as a hospital scheduler. Two times, a co-worker named Carl, 30 years her senior, sat in her lap and whispered to her that she was "beautiful."  Magyar reported the incidents to her immediate supervisor, Goddard, who then spoke to Carl but did not follow-up with Magyar.

While the harassment temporarily stopped, Magyar feared "that at any moment there might be a third incident." Thus, two months later she went to the Hospital's General Counsel and complained about Goddard's failure to respond to the complaint. Goddard then followed-up with Magyar, who secretly tape recorded the conversation. Approximately a week later, Goddard informed the GC that Magyar's issues "are resolved."

In the meantime, Goddard combined Magyar's job with that of another part-time employee. With the creation of the new position, Magyar received no further work and was eventually terminated. She then sued for retaliation.

The majority opinion found that Magyar's complaint up the chain of command constituted protected activity:

We note that, to succeed on a retaliation claim, Magyar need not prove that the underlying conduct she perceived as sexual harassment actually was serious enough to constitute a Title VII violation. Instead, she need only show that, when instituting her grievance, she had a "sincere and reasonable belief" that she was opposing an unlawful practice.... In this case, the record sufficiently demonstrates that Magyar subjectively felt that she had been sexually harassed.... Having a man old enough to be her father plop into her lap and put his lips to her ear to whisper “you’re beautiful” is the type of occurrence that, if it happened often enough, could constitute sexual harassment, and so Magyar's grievance was objectively reasonable.

In a strong dissent, however, Judge Posner takes the majority to task for missing the distinction between complaining about harassment and complaining about the handling of a complaint of harassment:

Magyar was complaining to the general counsel not of having been sexually harassed (she mentioned the alleged harassment only by way of background, for that grievance had long since been resolved), but of Goddard’s handling of the grievance.

Even more troubling to Judge Posner, however, was that Magyar seemed to be setting up the hospital for a lawsuit:

Shortly after the meeting with Goddard of which Magyar now complains (the meeting in which she revealed the sexual assault), she emailed Goddard saying: "Thank you ... so much for listening and understanding. You made me feel a lot more comfortable when I left. Thanks :)"

The only possible explanation for Magyar's dramatic swerve from being pleased with Goddard's handling of the situation (the smiley-face email) to litigation planning, complete with an illegal secret tape recording, is that she saw that she was about to lose her job. Otherwise the two-month interval between the meeting with Goddard that is the core of her complaint about Goddard's handling of the harassment grievance and the meeting with the general counsel makes no sense.

My friends at the Workplace Prof Blog take Judge Posner's side:

It seems that Judge Posner is correct. Magyar's complaint about the processing of her sexual harassment complaint  is not protected activity under Title VII. An internal investigation is not a practice made an unlawful employment practice by Title VII. It is rather a complaint about the handling of an internal investigation which is an internal business decision.

I do not think the analysis of this case is so simple. A complaint about the handling of a harassment complaint should count as protected activity. If an employee cannot complaint up the chain of command about a manager's handling of a harassment complaint, there would be little accountability or oversight for how a company adjusts the complaint. The company would always be able to hide behind the "internal business decision" defense and act with impunity towards the employee who takes issue with the harassment investigation. Even more troubling to me is Judge Posner's weighing of the facts on summary judgment. Yes, there are concerns about Magyar's motivation given the timing of her conduct and her surreptitious recording. Yet, aren't these facts that should be weighed and resolved by a jury?

For businesses, the takeaway from this case is that any employee who complains about discrimination or harassment should be treated with extra care. It does not mean that such an employee cannot be terminated. Any such termination, however, must be carefully deliberated and meticulously documents, your attorney should be consulted before reaching a decision, and you should brace yourself for the likely prospect of defending a retaliation lawsuit.