Judge rules against former employee due to lack of adverse action

• Published date: 01 February 2021
• Date: 01 February 2021
• DOI: http://doi.org/10.1002/nba.30942

FEBRUARY 2021 NONPROFIT BUSINESS ADVISOR

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DOI: 10.1002/nba

an email to that employee, which (1) detailed the

“key” policy and (2) stated she could take any further

questions to the HR manager.

The plaintiff told the director about the disagree-

ment on Feb. 19.

On the same day, the HR manager reported to the

director that the plaintiff had unprofessionally argued

with yet another secretary about the IDOT key policy.

When the director met with the plaintiff about the

two February incidents, she denied doing anything

wrong. However, he chose to believe the accusers, and

suspended her for ve days.

The plaintiff then led an unspecied complaint

with the Equal Employment Opportunity Commis-

sion in April.

After the HR manager reported to the director

on July 19 that the plaintiff had called her a liar, he

red her a week later for the stated reasons of (1)

the two February incidents and (2) calling the HR

manager a liar.

The plaintiff led a suit, and one of her claims was

gender discrimination.

The state led a motion for summary judgment.

In response, the plaintiff argued all of the charges

against her were false because she had neither acted

unprofessionally nor called anyone a liar.

But the district court judge ruled the plaintiff’s

guilt or innocence was irrelevant. He explained the

issue in the case was whether the director had honestly

believed the stated reasons for her termination.

The plaintiff next argued the timing was suspicious

because she (1) was issued a written reprimand in

February 2018 after making a sexual harassment

report in November 2017 and (2) red not long after

her EEOC complaint.

EMPLOYER WINS ➔ The judge agreed that both

the November 2017 sexual harassment report and the

April 2018 EEOC charges were protected activities.

However, he granted a summary judgment in favor

of the defendant, holding too much time had passed

between the events. He explained that (1) over two

months had gone by between the 2017 sexual harass-

ment report and the 2018 reprimand, (2) over three

months had elapsed between the 2018 EEOC charge

and the termination and (3) more than eight months

had passed between the 2017 sexual harassment re-

port and being red.

[Marshall v. State of Indiana, U.S. District Court

for the Northern District of Indiana, No. 1:18CV398,

06/08/2020]

Retaliation

Judge rules against former employee

due to lack of adverse action

Not long after the plaintiff started working for

Cleveland County in 2016, her supervisor allegedly

slapped her on the buttocks.

During the less than two years the plaintiff held

the job, the same supervisor purportedly tried to kiss

her on the face or mouth approximately 20 times.

The plaintiff went into the supervisor’s ofce in

May 2017 to (1) submit a letter of resignation and (2)

gather proof of the harassment by secretly recording

the meeting. Her recording of the meeting captured

the supervisor telling the plaintiff to “give me a kiss”

and “give me a hug.”

The plaintiff played the recording to human re-

sources a few days later, and the HR director instruct-

ed her to take sick days until the county completed

an investigation.

Another employee stated during the investigation

that the supervisor harassed the plaintiff by (1) mak-

ing inappropriate remarks, (2) hugging her, (3) kissing

her on the cheek and (4) rubbing her “backside.” In

addition, some coworkers claimed the supervisor

acted inappropriately with female employees, but

they never reported it because of his close ties and

strong connections with people in high places in

county government.

The county advised the supervisor on June 14 that

a hearing had been scheduled concerning charges he

had engaged in “unlawful workplace harassment that

created a hostile work environment.” However, the

supervisor was allowed to resign the day before the

hearing with his retirement benets intact.

The plaintiff led a suit, and one of her claims was

retaliation in violation of Title VII.

She alleged that the county failed to (1) fully

investigate the charges, (2) make a written record

of the investigation, (3) decide within a reasonable

time whether the misconduct constituted unlawful

harassment, (4) take immediate and appropriate

disciplinary action, (5) prohibit the supervisor from

retaliation, (6) timely inform her of the results of the

investigation and (7) re the supervisor instead of

allowing him to resign.

The county led a motion for summary judgment.

The district court judge said the essence of the

plaintiff’s retaliation claim was her outrage that

the county allowed the supervisor to retire with his