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Mistakes and Boasting Preclude Harassment Retaliation Summary Judgment

Sexual harassment complaints against supervisors are serious and the threshold for establishing retaliation often seems not very high.  Thus, it is imperative that employers respond appropriately and consider the consequences of future discipline against a complaining employee – especially discipline from the supervisor alleged to have sexually harassed.  

For example, on July 10, 2009, the 11th Circuit reversed the lower court’s summary judgment for the employer in a Title VII sexual harassment retaliation claim.  In Corbitt v. Home Depot USA, Inc., two male store managers from different stores were able to overcome summary judgment by demonstrating that a genuine issue of material fact existed as to whether the proffered reasons for their firing was in fact a pretext for retaliation. 

Both store managers were fired for giving questionable markdowns and discounted sales in violation of company policy.  The terminations occurred a mere 25 days after the store managers filed a formal sexual harassment complaint against their male supervisor, a regional human resources manager.  The store managers prevailed at summary judgment because the demonstrated that the supervisor had participated in an internal loss investigation, influenced the decision to terminate, and even participated in the termination counseling sessions with the store managers.  Moreover, the supervisor called a store human resources manager and bragged about being responsible for the terminations.  The result is a decision that a jury could reasonably infer that the supervisor influenced the termination decision in retaliation for the filing of the sexual harassment complaint.

Here, the lessons seem pretty clear.  The employer made a mistake in permitting the subject of a sexual harassment complaint to remain in the decision-making process for terminating the store managers.  It certainly didn’t help that the supervisor was compelled to boast about his responsibility for terminating the store managers, but he never should have been in a position to in the first place.

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