The 7th Circuit has held that a manager who forwarded along a possible sexual harassment complaint, and who was fired two months later, did not engage in protected activity under Title VII because “no reasonable person” in the manager’s position would have believed that the particular conduct in question constituted actionable sexual harassment, and therefore the internal complaint was beyond the protection of Title VII.
Here’s what this manager, named O’Leary, had complained about:
Miller [the putative harasser] apparently had bragged about having sex with a number of Accretive employees as well as the CFO of her former employer. She had also told a young male employee at the dinner that she preferred dating men his age because “they were more her speed.” … That man, Blake Graves, later recounted the remarks to his supervisor, George Tsokolas, who in turn reported them to his own supervisor, O’Leary. Graves told Tsokolas that he did not feel that Miller had sexually harassed him; he would later say that he had mentioned Miller’s remarks to Tsokolas as an amusing anecdote rather than as a complaint. When Tsokolas repeated the story to O’Leary, he told O’Leary that Graves did not feel harassed by Miller’s conduct. (O’Leary disputes that Tsokolas told him this, but ineffectively; O’Leary’s testimony at the cited pages of his deposition do not purport to deny this.) Indeed, Tsokolas did not believe that any additional action was required.
O’Leary nonetheless reported the incident to “senior management” at Accretive, even though (as he later admitted) he “had no reason to believe that Graves felt sexually harassed by Miller’s remarks” and he himself “was agnostic on the question of whether Miller’s remarks amounted to sexual harassment.” At the same time O’Leary brought the above incident to the attention of HR, he also mentioned that this same putative harasser was “riding” a different subordinate employee “really hard.” This subordinate happened to be African American. Two months later, Accretive fired O’Leary for poor performance. O’Leary sued, claiming retaliation for having passed along the above complaint to HR.
The 7th Circuit bounced his retaliation claim entirely, to the extent it was based on a complaint about sexual harassment, because O’Leary could not have had any good faith reason to believe that Title VII had been violated:
O’Leary had no reason to believe that Graves, who first mentioned the incident, felt harassed by Miller’s
comments; in fact, Tsokolas had told him that Graves did not feel harassed. Nor did O’Leary have reason to
believe that anyone else in attendance at the dinner was bothered by Miller’s remarks either. Even if Graves
or someone else had expressed discomfort with the remarks, that would not be enough to establish that
Miller’s remarks by themselves established a hostile work environment, for conduct must be both objectively
and subjectively offensive to be cognizable under Title VII. [Citation]. And although O’Leary points to some evidence in the record suggesting that Miller had engaged in similar behavior on other occasions, which would make for a stronger contention that she was running afoul of the statute, that evidence, to the extent it was known to him at the time he took the matter up the chain of command, neither triggered his complaint nor was discussed with his superiors. So far as the record reveals, O’Leary’s report focused on one incident of inappropriate behavior by Miller. No one could reasonably think that Miller had violated Title VII through her conduct at the dinner alone.
This was not the only complaint that O’Leary made about this same supervisor, however. At the same time he brought the dinner party conversation to HR’s attention, O’Leary had also noted to HR that Miller had been “riding” an African American employee “really hard.” The 7th Circuit held that there was enough evidence in the record to create an issue of fact as to O’Leary’s good faith basis to make this complaint about possible race discrimination, however, since evidence in the record suggested that the complaint was based on more than simply Miller’s bad mouthing this African American employee at the dinner. (Yes, the same dinner – a very fateful one, apparently.) The 7th Circuit nonetheless affirmed the grant of summary judgment on this part of O’Leary’s retaliation claim, finding that O’Leary had not identified evidence sufficient to rebut Accretive’s articulated nonretaliatory reason for his discharge – long-percolating performance issues.
The case is O’Leary v. Accretive Health, Inc., 7th Cir. No. 10-1418.
