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Employment & Labor Law FLASHPOINTS November 2018

November 15, 2018Print This Post Print This Post

Amanda Tiebert Collman, Robbins Schwartz, Chicago
312-332-7760 | E-Mail Amanda Tiebert Collman

Seventh Circuit Reminds Employers of Perils of Paying Too Little Attention to Their EEOC Position Statements

In Donley v. Stryker Sales Corp., 906 F.3d 635 (7th Cir. 2018), Kelly Donley, a clinical manager at Stryker, filed an internal complaint of sexual harassment with Stryker’s Human Resources Director, Stacie Ferschweiler, in June 2014. Donley was not the recipient of the harassing behavior but had learned of the harassment from coworkers. Stryker investigated the complaint and fired the manager who was accused, but also provided him with a substantial severance package.

Just after the manager was fired, Stryker began investigating Donley in August 2014. The focus of the investigation was an incident that had occurred six weeks prior at a team meeting in Vail, Colorado. At that team meeting, Donley had taken photographs of a female CEO of one of Stryker’s vendors in an intoxicated state and shared the photographs with coworkers.

Donley and Stryker disputed when Stryker’s managers became aware of Donley’s photographs. Donley contended that she showed them to her supervisor, Jeff Thompson, the night she took them, while Thompson stated he learned of the photographs sometime after the team meeting. Ferschweiler testified that she was unaware of the photographs until August 2014 when she learned of them through an employee’s exit interview.

Significantly, in its Equal Employment Opportunity Commission (EEOC) position statement, Stryker stated that Donley had shown the photographs to Thompson in Vail and that Thompson was “unamused” and told Donley to delete the photographs. However, during the lawsuit, Thompson denied seeing the photographs while in Vail.

Notwithstanding the above, Ferschweiler conferred with Thompson over the results of her investigation into Donley’s conduct and determined that Donley’s employment should be terminated because her conduct was inappropriate and showed poor judgment. Stryker did not offer Donley a severance package.

Donley sued Stryker for retaliation under Title VII of the Civil Rights Act, arguing that her employment had been terminated in retaliation for her internal complaint of sexual harassment.

Summary Judgment

Stryker moved for summary judgment, which was granted by the district court because it concluded that the evidence, as a whole, could not lead a reasonable fact-finder to conclude that Donley’s internal complaint caused her termination. The district court decided that the dispute over when Thompson had actually learned of Donley’s photographs was irrelevant because the decision to fire Donley had been made before Thompson learned of Donley’s protected activity (i.e., her internal complaint of sexual harassment).

Donley appealed the district court’s decision, arguing that the suspicious timing of the investigation could convince a reasonable fact-finder that Thompson and Ferschweiler retaliated against her. In support of her position, Donley offered the following evidence:

  1. both Thompson and Ferschweiler knew about the photographs before the August 2014 investigation;

  2. neither Thompson nor Ferschweiler took any disciplinary action against her until she reported the other manager for sexual harassment; AND

  3. in Stryker’s EEOC response, it admitted that Thompson saw the photographs at the team meeting in Vail.

EEOC Position Statements May Be Admitted as Party Opponent Admissions

In response to the above, Stryker argued against the admission of its EEOC position statement, asserting that parties are influenced by different factors and incentives in administrative forums. The Seventh Circuit affirmed its long-held position that certain factors may affect the weight given to an EEOC position statement in litigation but that position statements are not to be excluded when offered as a party opponent admission.

The Seventh Circuit found Stryker’s EEOC position statement particularly relevant because it showed Stryker’s shifting factual account for the decision to fire Donley, which could support a reasonable inference that Stryker’s stated reasons were not the real reasons for firing Donley. The Seventh Circuit held that, viewing the evidence in the light most favorable to Donley, a reasonable jury could conclude that her firing was retaliatory. The inconsistencies and contradictions between Ferschweiler’s and Thompson’s accounts of the reason for the investigation would allow a reasonable jury to interpret the suspicious timing of the investigation as evidence (1) that one or both decision-makers initially found Donley’s actions tolerable and (2) that they decided, only after Donley had filed the internal complaint, to use the incident as a pretext to fire her for retaliatory reasons.

Involvement of Individual with Retaliatory Motive May Lead to Liability for Employer

In responding to the above, Stryker argued that the timing of the investigation was immaterial because it was undisputed that Thompson was unaware of Donley’s internal complaint. As such, Stryker argued Thompson could have no retaliatory animus.

The Seventh Circuit held, however, that Stryker’s argument failed to consider the involvement of Ferschweiler in the firing, when Ferschweiler was aware of Donley’s internal complaint. If a person with retaliatory animus provides factual information or input that may affect the employment action, the employer may be liable for retaliation. As Donley produced evidence of Ferschweiler’s knowledge of her internal complaint and Ferschweiler’s meaningful role in the decision to fire her, the dispute regarding when Ferschweiler learned of Donley’s actions at the Vail team meeting might convince a reasonable jury that Ferschweiler harbored retaliatory animus.

For more information on Employment & Labor Law, see Employment Discrimination: Practice and Procedure — 2018 Edition. Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.


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