Most employers understand the importance of having legitimate business reasons for terminating an employee. However, it is also critical for all decision makers involved in the termination to have the same understanding of both the reasons for, and the facts leading to, the termination. Failure to ensure a consistent understanding of all the facts can lead to a negative legal outcome, as an October 15, 2018, case from the 7^th Circuit Court of Appeals illustrates.

In Donley v. Stryker Sales Corp., the plaintiff, Kelley Donley, learned from a co‐worker that one of her employer’s sales managers had sexually harassed a subordinate. The plaintiff filed a formal harassment complaint with the company’s human resources director, who then investigated the complaint. The investigation resulted in the sales manager’s termination.

Shortly after the sales manager was fired, the employer began investigating the plaintiff, Donley, for an incident that occurred six weeks earlier at a team meeting in Vail, Colorado. Specifically, it was alleged that the plaintiff had taken photographs of the CEO of one of the employer’s vendors while the CEO was at a bar in an intoxicated state. The plaintiff then shared the photographs with co‐workers. At the conclusion of the investigation, the plaintiff was terminated for her “inappropriate conduct and poor judgment” associated with the incident in violation of the employer’s policies.

The plaintiff sued the employer, claiming her discharge was in retaliation for the internal harassment complaint she had filed against the sales manager. The district court granted summary judgment for the employer. On appeal to the 7^th Circuit, the plaintiff argued that inconsistent statements by the employer’s representatives created suspicion regarding the timing of the investigation that led to her termination. In turn, she argued, a reasonable factfinder could conclude that her termination was in retaliation for filing the harassment complaint.

The plaintiff claimed that she showed her supervisor the photographs of the vendor’s CEO the night she took them. The employer’s written response to the Equal Employment Opportunity Commission (EEOC) charge indicated that the plaintiff showed the photographs to the supervisor the night they were taken, that the supervisor was “unamused,” and that he told the plaintiff to delete the photographs. In the lawsuit, however, the supervisor denied seeing the photographs the night of the incident, claiming instead in his deposition that he recalled hearing about the incident from other employees after the team meeting. He also testified that he told the human resources director about the photographs well before the formal investigation had commenced. However, the human resources director testified that she did not learn about the incident until much later when she conducted an exit interview with a departing employee who complained about the plaintiff’s unprofessionalism.

The plaintiff argued that these inconsistencies from the employer’s representatives could lead a reasonable factfinder to conclude that both the supervisor and the human resources director knew of the plaintiff’s misconduct well before it decided to investigate her, and that they took action to investigate and eventually terminate her only after the plaintiff filed her complaint of harassment against the sales manager.

The 7^th Circuit agreed with the plaintiff, and reversed and remanded the circuit court’s decision, noting, “[A]n employer’s shifting factual accounts and explanations for an adverse employment decision can often support a reasonable inference that the facts are in dispute and that an employer’s stated reason was not the real reason for its decision.”

The Court went on to hold:

Viewing the facts at summary judgment in the light most favorable to Donley…the evidence could convince a reasonable jury that her firing was retaliatory. Donley’s timeline, which is supported by evidence in the record, exposes inconsistencies and contradictions between [the supervisor’s] and [the human resources director’s] accounts of why Stryker began the investigation that ended with Donley’s discharge. If the disputed facts are resolved in Donley’s favor, a reasonable jury could interpret the suspicious timing as evidence (a) that one or both decision‐makers initially found Donley’s actions in the Vail incident to be tolerable, and (b) that they decided only later, after she had filed her internal complaint, to use that incident as a pretext to fire her for retaliatory reasons.

This case serves as a reminder to employers of the importance of:

1) Being responsive to any alleged misconduct by investigating it immediately;

2) Creating a detailed record of the factual background leading to any disciplinary action;

3) Ensuring any adverse employment actions are taken only for legitimate business reasons; and,

4) Having all personnel involved in the decision to investigate and/or terminate an employee understand and convey a consistent message regarding the reasons for, and facts related to, the employer’s actions.

The foregoing are particularly important in those situations where an employer’s adverse employment action comes soon after an employee engages in legally protected conduct, such as filing a discrimination or harassment complaint.

If you have any questions regarding the 7^th Circuit’s decision in this matter, or best practices for internal investigations, employee discipline/discharge, or defending against discrimination/retaliation claims, please contact Brian Waterman at bwaterman@buelowvetter.com or 262-364-0257, or your Buelow Vetter attorney.