Supervisor investigating sexual harassment as part of normal duties not protected from retaliation

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By Joy Waltemath

By Dave Strausfeld, J.D.

A building security supervisor who was fired shortly after investigating sexual harassment accusations against her boss was not protected by Title VII, held a federal district court in Michigan, dismissing her retaliation claim on summary judgment. Her conduct fell outside the scope of the statute’s antiretaliation provision because her normal job duties included reporting and investigating other employees’ complaints of discrimination. To be covered by Title VII’s antiretaliation provision, the supervisor needed to show she was not merely engaged in her normal job duties. In any event, she was unable to establish pretext (Coleman v. G4S Secure Solutions USA, Inc., December 27, 2016, Edmunds, N.).

Investigated her own boss. The supervisor, who was in charge of building security at a large tech center, began investigating her own boss for sexual harassment after receiving reports of inappropriate sexual comments from three of her subordinates. She reported the allegations to the human resources manager, who allegedly told her to follow her “usual procedures” for writing up the matter, which she did. The boss was suspended pending the investigation and ultimately was disciplined.

Four months later, the supervisor was fired. She allegedly had failed to properly respond to a verbal altercation between two security officers. After being terminated she filed an EEOC charge and then brought a lawsuit for retaliation.

Lewis-Smith. Moving for summary judgment, her employer argued that the supervisor could not bring a retaliation claim because she engaged in no protected activity. The court agreed and dismissed her claim. “In order for employees in human resources positions to claim retaliation, they need to first clearly establish that they were engaged in protected activities other than the general work involved in their employment,” the court explained, quoting a federal district court in Kentucky in Lewis- Smith v. Western Kentucky Univ., which relied in part on reasoning from the Tenth Circuit.

Because no Sixth Circuit precedent appeared to be on point, the court relied here heavily on Lewis-Smith and some out-of-circuit decisions addressing the difference between job performance and protected activity.

Lewis-Smith distinguishable? The supervisor attempted to distinguish Lewis-Smith by contending that the plaintiff in that case worked in the HR department, while the building security supervisor’s job description in the present case did not include a duty to conduct discrimination investigations. But the court rejected the proposed distinction between HR employees and other employees. Because the supervisor here was performing her regular managerial duties in investigating the sexual harassment allegations, she was covered by the rule recognized in Lewis-Smith differentiating between performing one’s job and protected activity and, consequently, could not bring a retaliation claim.

The supervisor’s own testimony showed she was acting within her normal duties, because she testified that when she reported the sexual harassment allegations to HR, the HR manager told her to “do what you usually do, get your paperwork together and get it to me.” The supervisor then asked her three subordinates who reported inappropriate sexual remarks to complete a standardized incident-reporting form, and the supervisor herself also took interview notes.

Because, as in Lewis-Smith, the supervisor was performing her regular managerial duties in reporting and investigating the sexual harassment allegations against her boss, she did not engage in any protected activity for purposes of Title VII and could not bring a retaliation claim under that statute, the court held.

No causation or pretext either. Even if the supervisor could establish that she engaged in protected activity, her retaliation claim would fail in any event, the court observed. She could not satisfy the “causation” element of her prima facie case, because, while some of her superiors may have been unhappy with her for having investigated her boss, her evidence did not raise an inference that they terminated her because of it, and temporal proximity was not enough. And even if she could demonstrate causation, she was unable to show that the proffered reason for her termination—failing to respond adequately to a security situation—was pretextual. Having a “gut feeling” she was being retaliated against for having investigated her boss was not enough, the court noted.

Source:: Employment Law Daily Newsfeed


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