First of all, let me apologize for my long hiatus. "I was a victim of a series of accidents, as are we all". I'll try to do better from here out.
Occasionally the facts of a case are convoluted enough that the courts and the parties lose their way in formulating their arguments. I can understand this happening with the trial court, which sees only what is presented before it, but the parties, having lived through a lengthy discovery period, should at least know their arguments. On a recent Seventh Circuit appeal, the Court set both groups straight in a typically sordid sex discrimination case in Joliet, Illinois.
The female plaintiff worked as an office manager for a floor covering company. Married, she ended up having an affair with the married co-general manager and major sales producer, which ended only after her husband discovered letters from her boyfriend in a dresser drawer (memo to self: move all illicit romance communications to instant message or text message format). Plaintiff's husband informed her that he did not want her working at the store anymore with the paramour, and also called the boyfriend on two occasions and warned him to stay away from his wife, the plaintiff. The plaintiff's husband also threatened the boyfriend over the phone.
Having put all this in motion, plaintiff also indicated to her supervisor that she was going to have to quit because of the affair. Although the company management interpreted the statement as a resignation, plaintiff's managers tried to see if there was a solution short of terminating her employment. They ultimately decided that they could not transfer her boyfriend because he was the top producing salesman in Joliet, and because of the threats from plaintiff's husband, plaintiff could not continue to work at the store. Accordingly, they decided to accept the resignation.
The convoluted record gets even more convoluted here, because the same day that the company decided to accept her resignation, plaintiff advised her management that she and her husband had reconciled and that he no longer objected to her working at the Joliet store. Whoops, too late. She was terminated, and her boyfriend continued on at the store receiving no discipline for the consensual affair. The plaintiff sued alleging gender discrimination in her termination, and the case went to trial. A jury awarded her $250,000 in damages, a verdict which the trial court promptly vacated stating that no reasonable jury could believe she was the victim of intentional discrimination.
The Seventh Circuit affirmed, but had to sort out a lot of sloppy reasoning in its opinion. The first mistake that the parties made, which was then passed on to the trial court, was that this case was an employee discipline matter. It was undisputed at trial that the company did not have a policy forbidding employees to engage in relationships with coworkers or subordinates. In fact, the company owner noted that of the 17 people working in the Joliet store, 12 had been involved in romantic relationships with other employees.
To quote another Chicago area commentator, "Holy Cow". What's in the water down there in Joliet?
The Court went on to find that there was plenty of evidence for the jury to reject the defendant's argument that plaintiff resigned. The Court then cut through the whole issue over the affair and went directly to the decision point--namely that plaintiff had been discharged because of her disruptive effect on the workplace, in the form of her husband's actions and her own concerns. The Court noted that plaintiff, and the parties, were in error when they attempted to establish that plaintiff was similarly situated to her management boyfriend. Instead, she was similarly situated only to other employees "who threaten to cause workplace disruption." There was no such comparison at trial and, as a result, the plaintiff could not establish a case of intentional gender discrimination.
On the way to its final decision, the Court noted that the parties continued to use the burden shifting analysis of Title VII, even though the case had gone to trial. Those of us who have tried Title VII cases are well aware now that the McDonnell Douglas test has little to no use at trial because it is simply too confusing for juries to sort through. The correct test at trial is simply whether plaintiff can make a prima facie case of employment discrimination, followed by whether the defendant produces sufficient evidence to substantiate its decision on grounds other than gender.
So, the lesson here is to pay attention to what you are actually doing in one of these situations. The exciting fact of the case--the affair-- really had nothing to do with the actual employment decision. It took the appellate court, sitting back and away from the fray, to figure this out.