Subordinate terminated for refusal to continue consensual relationship with a supervisor cannot establish retaliation under Title VII because he didn’t think the relationship was illegal.
Editor’s comment: Refusing conduct on moral grounds without a belief the conduct is illegal does not render the refusal protected from retaliation under Title VII. In Tate v. Executive Management Services, Inc., the Seventh Circuit overruled the lower court ruling dismissing the appeal. If you review this decision, we ask the rhetorical question: would this happen if Plaintiff was a woman? The evidence appears to clearly establish this male Plaintiff was terminated for refusing to continue an intimate relationship with his female supervisor. It appears the court looked at the perception of the parties and not their actions in ruling.
Plaintiff worked for Defendant until his termination January 14, 2004. He brought suit under Title VII alleging sexual harassment and retaliation for his refusal to continue a relationship with his supervisor. In trial by jury he prevailed only on the claim of retaliation, and Defendant appealed that verdict alleging Plaintiff did not engage in protected conduct sufficient to establish retaliation, nor did he prove his termination was due to a refusal to engage in sexual conduct with his supervisor where his termination followed an independent investigation. They argued the issue of retaliation never should have been given to the jury due to the absence of protected conduct. The Appellate Court reversed, finding Plaintiff failed to show he engaged in protective conduct.
Plaintiff was a male subordinate of a female field supervisor with whom he alleged a romantic relationship. The field supervisor denied there was ever a physical relationship, while Plaintiff alleged a relationship wherein they had intimate meetings 2-3 times per week, either at work or at the home of a co-worker.
When hired in 2002, the supervisor picked Plaintiff to be on her work team, and a week after being hired, recommended him for promotion to supervisor, which involved a pay raise. Plaintiff married another woman in August 2003, and tried to end the relationship with the field supervisor in October 2003 for the sake of his marriage. The field supervisor rebuked his efforts to end the relationship, and threatened Plaintiff with termination if he did not continue the relationship.
On January 13, 2004 the field supervisor summoned Plaintiff to her office and demanded Plaintiff’s decision regarding their ongoing relationship. Plaintiff informed there would be no relationship, and following a loud altercation was told to get out of her office. The discussions spilled into the break room, where the field supervisor informed Plaintiff she would have him fired for refusing to perform work assigned to him. The field supervisor placed a call to her supervisor but did not allow Plaintiff to speak to him. The management member instructed the field supervisor to tell Plaintiff to go home, and he was escorted from the building by a security officer.
Plaintiff left and the field supervisor called the company’s general manager and indicated Plaintiff had refused assigned work and prepared an insubordination report alleging Plaintiff was sent home for repeatedly refusing a work assignment, and that a security officer was heard the entire exchange.
The next day Plaintiff called management, but was intercepted by an HR representative who informed Plaintiff he was fired and was to return his work items. He was given no opportunity to explain his position.
The jury found the investigation was tainted by the field supervisor’s bias and found for Plaintiff on the retaliation claim.
On appeal Defendant argued the jury never should have been given the claim of retaliation because Plaintiff could not establish his termination regarded protected conduct. Title VII renders illegal an employer’s discrimination because of the employee’s refusal to perform an unlawful employment practice. A Plaintiff claiming retaliation must show he engaged in a statutorily protected activity and suffered an adverse reaction because of the activity. To engage in protected conduct Plaintiff must show he reasonably believed the practice he opposed, in this instance, intimate relations with his supervisor, violated Title VII. Analyzing testimonial evidence, the Court concluded Plaintiff did not believe the relationship was illegal, and therefore was not protected conduct.
The Court noted Plaintiff’s objections to the relationship were not based on legal grounds but because he and his field supervisor “were not good together” and because he wanted to “keep the slate clean” within his marriage. Because he did not sincerely believe the behavior was illegal, he could not establish his opposition to it was protected conduct under Title VII. Therefore, Plaintiff could not establish the necessary requirements of retaliation under Title VII, and the verdict was reversed.
This article was researched and written by Joseph R. Needham, J.D. Please direct your thoughts and comments to Joe at jneedham@keefe-law.com.
