Judge shoots down discrimination claim of fired employee

• DOI: http://doi.org/10.1002/nba.30723
• Published date: 01 February 2020
• Date: 01 February 2020

NONPROFIT BUSINESS ADVISOR FEBRUARY 2020

10 © 2020 Wiley Periodicals, Inc., A Wiley Company • All rights reserved

DOI: 10.1002/nba

Employment Law

Here’s a look at several recent notable lawsuits involving nonprots. Nonprots should regularly review

employment laws and their compliance efforts to avert similar issues.

Sexual harassment

Judge rules affair was consensual,

not unwanted harassment

The plaintiff was a supervisor in the Birmingham

Department of Public Works.

In early 2014, she went out to dinner with a mar-

ried department director, and the two had their rst

sexual encounter that evening. Thereafter, they talked

on the phone and texted each other every day. The

plaintiff allowed him to stay overnight several times,

and he frequently visited on the weekends. The two

also took a trip together. She paid cash for their hotel

room, while the director paid for their meals.

Around that time, the plaintiff told the director she

loved him. She also told one of her co-workers she

was in love with him. The plaintiff wasn’t offended

when the director would greet her during work by

saying “Hey, cutie” or “Hey, sexy.”

At no point in their relationship did the plaintiff

communicate to anyone else that his advances were

unwelcome.

The plaintiff resigned in 2016 for “personal rea-

sons” and then led a suit claiming a hostile work

environment caused by sexual harassment in violation

of Title VII.

The plaintiff claimed she didn’t tell management

about the relationship because she feared the depart-

ment director would retaliate against her since he had

control over her job.

The city led a motion for summary judgment.

The district court judge said the gravamen of any

sexual harassment claim was that the sexual advances

were unwelcome.

EMPLOYER WINS ➔ He said the plaintiff’s own

deposition testimony conrmed she had willingly

engaged in a two-year relationship with the director,

and all of the evidence showed she had welcomed

the relationship.

The plaintiff admitted that her participation in the

relationship was voluntary but said she felt pressured

in order to keep her job. She also admitted that the

director never directly threatened dire consequences

if she refused his advances, but said she felt indirectly

threatened because he often implied he had control

over her job.

The plaintiff also contended she had participated

in the sexual relationship because she had seen the

results of the director’s ability to write up and suspend

other employees.

However, the judge said the crux of the inquiry was

whether: (1) the employee regarded the conduct as un-

desirable or offensive and (2) the employee’s conduct

indicated that the sexual advances were unwelcome.

He said the plaintiff’s own testimony demon-

strated she welcomed the relationship. He also said

the plaintiff was given at least three opportunities to

report any unwelcome sexual harassment but never

complained about the director and went so far as to

deny the relationship each time.

The judge granted a summary judgment in favor

of the city. He said the plaintiff’s characterization

of the affair didn’t change the undisputed facts, and

concluded that no reasonable jury could nd that the

plaintiff’s conduct indicated that her relationship with

the director was unwelcome.

[Miles v. City of Birmingham, et al., U.S. District

Court for the Northern District of Alabama, No.

2:17-CV-1156, 06/26/2019].

Gender discrimination

Judge shoots down discrimination claim

of red employee

In January 2014, the plaintiff went to work for the

Lancaster County Register of Deeds as a data-entry

technician.

The plaintiff’s supervisor gave her verbal warn-

ings in August and October 2014 because of some

data-entry errors.

In January 2015, the plaintiff received a written

reprimand for allegedly committing four data-entry

errors. She was suspended for one workday in Feb-

ruary for the stated reason that she had made ve

data-entry errors. In the summer, the plaintiff’s

supervisor removed most of her duties to help her

focus on accuracy.

The plaintiff was terminated in November after

purportedly making 19 data-entry errors within the

previous 60 days.

The plaintiff led a suit that made several claims.

One of them was gender discrimination.