Court Finds Employee’s Schedule Change Was Not Retaliatory

A federal appellate court has upheld the dismissal of a lawsuit brought by an employee who claimed that he was subjected to retaliation for prior bias claims that he brought against his employer. According to the Seventh Circuit Court of Appeals, the employee “cannot use his prior EEO activity as a shield against the consequences of his inappropriate workplace conduct.” Vaughn v. Vilsack, No. 11-3673, Seventh Circuit Court of Appeals (March 8, 2013).

Factual Background

Gary Vaughn was employed by the U.S. Forest Service, which is an agency of the U.S. Department of Agriculture (USDA), since 1974. He filed numerous complaints with the agency’s Equal Employment Opportunity (EEO) representative. He filed these in 1997, 2004, 2005, and 2006 alleging race and age discrimination and retaliation for filing the complaints. On September 11, 2007, he settled all of the complaints, including one that had progressed to court.

During this same time period, Vaughn was involved in a romantic relationship with a co-worker, Lynn Towery. A few months after the relationship ended in 2005, Towery complained to Vaughn’s supervisor that she was being sexually harassed by Vaughn. The supervisor had a meeting with Vaughn and Towery and both agreed to limit all contact to work-related issues. Less than a month later, Vaughn was placed on administrative leave for not honoring the agreement.

Towery also obtained a protective order from a state court. In one of two meetings with a psychotherapist who was tasked with determining Vaughn’s fitness to return to work, Vaughn acknowledged that Towery received the court order because of his “obsessive/ compulsive contacts and phone calls with her and difficulty accepting the end of the relationship.”

Vaughn later returned to work in a different role with no contact with Towery, but after one of his EEO complaints was mediated, he was reassigned to his old job. A few months later, Towery complained of continued harassment, alleging that Vaughn was seen in the parking lot following Towery’s car, pulling in front of her, and slowing down.

Towery filed a complaint with the Equal Employment Opportunity Commission claiming that management had failed to stop Vaughn’s harassing behavior. Towery and the USDA eventually reached a settlement, which provided monetary compensation to Towery and prohibited Vaughn from being at the worksite at the same time as Towery. As a result, Vaughn’s schedule was changed from the day to the night shift.

Vaughn filed a lawsuit in federal court against the USDA claiming retaliation for his prior EEO activity, leading to his changed work schedule and lost overtime opportunities. The USDA asked the court to dismiss the case, arguing that Vaughn’s schedule change was necessary to comply with the terms of the settlement with Towery. In dismissing the case, the trial judge determined that Vaughn did not provide sufficient evidence to establish a viable claim of retaliation under Title VII of the Civil Rights Act because “he could not have been meeting his employer’s legitimate expectations while harassing a co-worker.” Vaughn appealed the trial judge’s decision to dismiss his case to the Seventh Circuit Court of Appeals.

Legal Analysis

The Seventh Circuit held that to establish a prima facie case of retaliation, Vaughn must present either direct proof of retaliation or indirect proof showing that: (1) he engaged in a statutorily protected activity; (2) he met his employer’s legitimate expectations; (3) he suffered a materially adverse action; and (4) he was treated less favorably than a similarly situated employee who did not engage in the statutorily protected activity. If he established all four elements, the employer then has the burden to show there were nondiscriminatory reasons for the adverse action. The burden then shifts back to Vaughn to show that the employer’s reasons were pretextal.

In focusing on the second element, the court noted that “[a]n employee who sexually harasses a co-worker cannot be considered to be meeting his employer’s legitimate expectations ‘by any stretch of the imagination.’” The court noted that employees cannot use prior EEO activity to “shield” themselves against the repercussions of inappropriate behavior at work.

Even though the issue of pretext would not have to be addressed because Vaughn failed to establish that retaliation had occurred, the Seventh Circuit pointed out that the analysis for determining whether an employee met the employer’s “legitimate expectations” is very much connected to the issue of pretext. Here too, the Seventh Circuit found that each of Vaughn’s allegations of pretext did not rebut the employer’s legitimate reasons for the actions it took. Thus, the court upheld the dismissal of his retaliation suit.

Practical Impact

According to Robert Casey, a shareholder in Ogletree Deakins’ Chicago office: “The court’s decision in Vaughn is a welcome application of commonsense principles affirming an employer’s right to hold employee’s accountable for their workplace misconduct.

“If one reads the opinion carefully, there are clearly excerpts that will prove useful in other settings or litigation, e.g., ‘even if [Vaughn’s] unwanted contacts [with Towery] did not rise to the level of actionable harassment on account of [her] sex . . . he cannot contend seriously that he was performing his job in a manner that the Forest Service, or any other employer, would find acceptable’; and ‘[t]here is no validity to [Vaughn’s] suggestion that an employer must tolerate harassment of a co-worker, no matter how offensive or disruptive to the workplace, so long as the harasser does not cross the threshold that will subject the employer to liability for ignoring the harassment.’

“Thus, the court rightly concluded that Vaughn could neither establish his prima facie case of retaliation, nor establish that the reasons for the employer’s actions were a ‘pretext’ for retaliation. This case will be a useful precedent for employers that are faced with similar circumstances— and is a reason why all claims of harassment must be investigated fully and addressed appropriately in the workplace.

“Nonetheless, the facts in Vaughn are relatively unique. The employer had a documented history of years of complaints of harassment that coincided with the years of Vaughn’s own engagement in his (separate) protected activities and had a settlement that required the changes in scheduling and overtime opportunities about which Vaughn subsequently complained.

“Just as importantly, Vaughn was apparently unable to produce performance evaluations that rated him as ‘satisfactory’ while Towery was complaining about him. Employers have often been caught in such conflicts between ‘satisfactory’ ratings on performance evaluations and claims of actionable misconduct. Had there been such evidence here, Vaughn may have satisfied his prima facie burden (although he likely still would not have been able to show pretext). This conclusion reinforces the standard advice that supervisors must provide accurate written reviews of subordinates.

“One last note on this ruling is appropriate—Vaughn complained that the employer had never interviewed him when investigating Towery’s complaints of harassment. That is not a recommended practice, but in this case there was sufficient other evidence in the record (including an order of protection issued by a state court and Vaughn’s admission to a psychotherapist of his ‘obsessive/compulsive contacts’ with Towery) that the court found that failure to interview Vaughn to get his side of the story was ‘not fatal.’ The employer had a good-faith belief based on the evidence available to support its actions.”