Diversity & Inclusion, HR Management & Compliance

Employer Defends Itself Against Bias, Harassment, and Retaliation Claims

Some workplace cases provide multiple lessons about employment discrimination. Recently, the U.S. 8th Circuit Court of Appeals—which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota—rendered a decision providing guidance on discrimination, harassment, and retaliation.

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In December 2013, Amanda Gibson went to work for Con-E-Co, a manufacturer of portable and stationary concrete batch plants and mixers. During her stint with the company, she was reprimanded for violating its harassment policy including using sexualized, vulgar language on multiple occasions, one of which resulted in her suspension.

Gibson, in turn, claimed she was the victim of several instances of crude, sexually charged behavior directed at her by coworkers. The incidents included one male employee saying she would look “good with a rod between [her] legs,” another remarking her “girls” looked “fuller/perkier,” and a third coworker attempting to grab her breast.

In March 2015, Gibson witnessed an interaction between plant foreman C.J. Coartney and an African-American employee, Curtis Frost, in which the former reprimanded the latter for using a vending machine during work time. Gibson believed Frost was sanctioned because of his race. After witnessing the incident, she expressed her concerns to Coartney and at least one other plant foreman, Gary Stillman.

Shortly thereafter, Gibson wrote a letter to both foremen and attached a picture she had drawn containing profane language. In the letter, she said Coartney and Stillman should look at things from Frost’s and her perspectives “because he is one of only a few black guys here,” and she was “one of only a few females here.” The letter made no explicit reference to race or sex discrimination, and the only mention of Frost was the line, “he is one of only a few black guys here.”

Soon after the letter was delivered, Kari Hockemeier, Con-E-Co’s HR manager, approached and told Gibson she had distributed a letter and picture that were deemed offensive. Therefore, she was suspended pending an investigation. Ultimately, Hockemeier fired Gibson.

About a week later, Gibson contacted Con-E-Co’s parent company and made a complaint under its nonretaliation policy. She claimed the employer’s decision to fire her was “[d]irect retaliation for [her] good-faith actions regarding wrongdoing/unethical behavior by a Foreman.”

She also attached an eight-page letter detailing every incident of alleged sexual harassment and discrimination she had experienced during her employment. The parent company conducted an investigation and ultimately determined the firing was justified.

Gibson sued for employment discrimination. After the federal district court granted summary judgment (dismissing without a trial) to Con-E-Co, she appealed to the 8th Circuit.

No Sex Bias Claim Because Employee Fails to Meet Employer’s Expectations

To establish a disparate treatment discrimination claim, an employee must provide direct evidence of bias, which Gibson didn’t allege, or establish circumstantial evidence to show a violation under the McDonnell Douglas standard.

To do so, she had to show (1) she was a member of a protected class, (2) she was meeting her employer’s legitimate job expectations, (3) she suffered an adverse employment action, and (4) similarly situated employees outside the protected class were treated differently. Only if she were successful in doing so would Con-E-Co have to “rebut the presumption of discrimination by articulating a legitimate, nondiscriminatory reason for the adverse employment action.”

The 8th Circuit found Gibson failed to establish a prima facie (or minimally sufficient) sex discrimination case because she didn’t show she met Con-E-Co’s legitimate job expectations or that it treated her differently than similarly situated male employees:

  • Con-E-Co had warned Gibson about her use of sexual language in the workplace, such as telling a coworker she only knew how to “nurse babies and suck d***” and on multiple occasions yelled that her “underwear’s up her ass.”
  • Before the termination, Gibson gave her foremen the picture containing the extremely offensive language.

The court found the undisputed violations of Con-E-Co’s harassment policy showed Gibson wasn’t meeting her employer’s expectations.

Male Comparators Aren’t Similarly Situated

In addition, Gibson failed to establish that her comparator male coworkers were similarly situated to her. The coworkers, unlike Gibson, weren’t reported for multiple violations of the harassment policy.

The 8th Circuit emphasized the comparators must be “similarly situated in all relevant respects,” and Gibson’s multiple violations were a big enough difference that she wasn’t “similarly situated in all relevant respects.”

Sexual Harassment Claim Fails, Too, Because of Her Own Conduct

The 8th Circuit noted a different standard applied to Gibson’s sexual harassment claim. She had to show (1) she belonged to a protected group, (2) she was subject to unwelcome sexual harassment, (3) the misconduct was based on sex, (4) the action affected a term, condition, or privilege of employment, and (5) the employer knew or should have known about it and failed to take proper remedial action.

Critical to Gibson’s claim was the fourth element. To prove the treatment affected a term, condition, or privilege of employment, she had to show (1) the environment was objectively hostile, and (2) she “subjectively perceive[d]” it to be “abusive.” The 8th Circuit found that even if the conduct was objectively hostile, her own conduct and statements defeated her ability to show she subjectively perceived the environment to be abusive.

In arriving at that conclusion, the 8th Circuit relied on Gibson’s own admissions in her letter to a corporate employee who was investigating her posttermination complaint. She stated:

<blockquote>I loved it there: I told all the guys it was like having a bunch of brothers and uncles I never wanted. . . . I was rarely offended, and the few times I was[,] . . . I handled it.

Moreover, the court noted the evidence that Gibson herself “engaged in behavior similar to that which she claimed was unwelcome or offensive,” on multiple occasions, showed the actions of the accused employees weren’t unwelcome. In short, she couldn’t prove she subjectively considered the environment to be abusive.

Retaliation Claims Also Come Up Short

First, Gibson claimed she was fired in retaliation for her letter about the vending machine incident, which she characterized as a report of race discrimination. The 8th Circuit noted she had to establish first that the letter constituted protected activity, meaning “opposition to employment practices prohibited under Title VII [of the Civil Rights Act of 1964].”

For the complaint to qualify as protected activity, the court said she must have an objectively reasonable belief that an actionable Title VII violation had occurred. For her claim to be actionable (or pursuable in court), Frost would’ve had to suffer an “adverse employment action” that amounted to a “material employment disadvantage.”

Although Gibson knew Frost had been “written up” after the vending machine incident, she had no reason to think he suffered any other repercussions. In addition, written criticism doesn’t constitute a materially adverse action “when it did not result in any change” to the terms or conditions of employment such as loss of pay, demotion, suspension, or termination. Accordingly, the 8th Circuit upheld the dismissal of the claim.

Second, the 8th Circuit found Gibson also failed to establish a prima facie retaliation claim based on her reporting of sex discrimination because she never demonstrated a causal connection between the complaints and her termination. The court noted:

<blockquote>Generally, . . . more than a temporal connection between protected activity and an adverse employment action is required to show a genuine factual issue on retaliation exists.

The court pointed out she offered no more than the proximity in time between her letter and the termination to suggest causation, and even that connection was found to be tenuous.

The 8th Circuit noted Gibson’s retaliation case, built on temporal proximity, was further undermined by her offensive and sexual letter, which violated Con-E-Co’s policy and happened at the same time. Additionally, she didn’t present evidence of any retaliatory measures taken against her at the time of her earlier complaints or offer other evidence linking her eventual firing to them. Accordingly, the court upheld the dismissal of the second retaliation claim as well.

Bottom Line

Gibson’s case serves as an excellent primer on the standards courts apply to decide if discrimination, harassment, or retaliation occurred after an individual protested either her own or a third person’s treatment. The surrounding facts are always very important. In analyzing or defending the actions you take as the employer, here are some questions to ask:

Was the employee meeting your legitimate expectations? In the past, courts often treated the question as merely asking whether the employee was qualified to perform the job requirements. More recently, the question has evolved to challenge the employee to show she was meeting your legitimate expectations, which improves your chances of defending a disciplinary decision.

Are the comparators truly similarly situated? As a practical matter, the courts have increased the burden for employees to provide a greater level of “identity of circumstances” in disparate treatment cases. It behooves you to look critically at the issue in evaluating each case.

How much did the employee engage in or accept the behavior now being complained about? Long-term acceptance of what the employee is now alleging to be harassing behavior can assist in your defense. Don’t confuse acceptance, however, with the failure to complain because of fear or intimidation.

Finally, has the negative action risen to the level of an adverse employment action? Not every negative action does so. For instance, a disciplinary write-up without more, as happened here, rarely meets the test.

Steve Jones is an attorney with Jack Nelson Jones, P.A., in Little Rock, Arkansas. You can reach him at sjones@jacknelsonjones.com.