By: Carol G. Schley, Clark Hill PLC
In a recent case from the Michigan Court of Appeals, the court found that an employer acted lawfully when it terminated an employee who reported sexual harassment by a co-worker, but not the employee accused of the harassing conduct. The reason for this somewhat unusual outcome was the behavior of the terminated employee after she initially reported the harassment.
In Heyer v Effex Management Solutions LLC, Sheri Heyer worked as a first shift human resources coordinator for Effex, and shared her desk and computer with employees who worked on the second and third shifts. When she arrived at her desk on June 2, a photograph of a penis appeared on her computer screen. A review of her computer showed that the image was also shared on the Facebook page of an employee who worked the prior shift, Aaron Johnson. Heyer called her supervisor to report the incident and followed up with an email in which she said that Johnson “was a huge liability and needs to go!”
A few weeks later, on June 29, Heyer learned that Effex had reprimanded Johnson with respect to the incident she reported, although she did not know what action was taken. That same day, she received an apology note from Johnson. In response to this note, Heyer sent Johnson an email, copied to her supervisor, which said in part:
[You] should be embarrassed!
The thing that concerns me the most is that you are working around all these young girls. THAT makes me sick to my stomach.
You should have been fired!!!!
Did you know that this is sexual harassment and how serious that is???
I have proof of EVERYTHING to protect myself!
I have told everyone what you did.
It has been left un-punished in my opinion.
I think you are a major liability to Effex!
Effex determined that this email was unprofessional and threatening, and it terminated Heyer’s employment. Subsequently, Heyer emailed her supervisor seeking reinstatement, but also admitting that her email to Johnson “was not professional.” After Effex refused to reinstate her, Heyer filed a lawsuit asserting retaliatory discharge under Michigan’s Elliott-Larsen Civil Rights Act (“ELCRA”), claiming that her June 29 email was a report of sexual harassment and therefore protected activity, and that Effex unlawfully retaliated against her by terminating her because she made the report.
On a motion for summary disposition, the trial court found in favor of Effex, and the Court of Appeals affirmed. While the court found that Heyer’s June 29 email did constitute protected activity (since it related to her original report of sexual harassment by Johnson), it also found that Effex did not terminate Johnson because she reported sexual harassment, but because she sent a threatening and unprofessional email to Johnson. The court noted that Effex did not take any adverse action against Heyer after she first reported Johnson’s conduct on June 2, which supported Effex’s position that her termination was unrelated to her report of sexual harassment. The court also noted that, “Heyer admitted at her deposition that she sent the [June 29] email to ‘scare’ Johnson, not to report his activity. A month after her termination, Heyer admitted that her email was unprofessional and could be interpreted as a threat against Johnson. Heyer is not protected against her own misconduct, misconduct she personally admitted after the fact.” Finally, the court found that the fact that Johnson was reprimanded for his harassing conduct but kept his job, while Heyer was terminated, was insufficient to establish a claim of unlawful retaliation, since both of the employees were at-will, Effex did not have a mandatory progressive discipline policy, and Effex had discretion to use progressive discipline on a case-by-case basis.
While employers are prohibited from retaliating against employees for reporting harassment, Heyer is a reminder that such employees are still required to perform their jobs satisfactorily, and are not immune from being reprimanded or terminated when they engage in workplace misconduct. The circumstances of Heyer are somewhat unusual given the inflammatory tone of Heyer’s email to Johnson and her subsequent admission that it was unprofessional and meant to scare him. In many cases, whether an adverse employment action can and should be taken against an employee who has reported harassment may not be clear cut. In such circumstances, it is best to assess any employment-related decision, prior to making it, with the assistance of legal counsel.
Carol G. Schley is a member of the Detroit SHRM Legal Affairs Committee and an attorney at the law firm Clark Hill PLC. She can be reached at firstname.lastname@example.org or (248)530-6338.
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