How Employers Try To Sweep Sexual Harassment Complaints Under The Rug
Having represented sexual harassment victims for nearly twenty years, our Citrus County, Florida sexual harassment lawyers have learned that employers often try to sweep sexual harassment complaints under the rug by giving the victim an ultimatum: resign or be fired. In issuing the ultimatum, employers hope that sexual harassment victims will elect to resign in order to protect their future employment prospects and then go away quietly. The alleged facts in Montell v. Diversified Clinical Services, Inc., 757 F.3d 497 (6th Cir. 2014) illustrate the use of this coercive employer tactic and an employee’s refusal to go away quietly.
Employer’s Ultimatum To Victim: Resign Or Be Fired
In that case, Marla Montell (Montell) sued her former employer, Diversified Clinical Services, Inc. (DCS), for retaliation under Title VII of the Civil Rights Act of 1964 (Title VII). Montell claimed that DCS violated Title VII by forcing her to resign and thereby constructively discharging her in retaliation for complaining about sexual harassment.
Montell was employed as DCS’s Program Director at Frankfort Regional Medical Center. Montell’s immediate supervisor, a man named Day, was the Area Vice President. DCS managed the wound center at Frankfort Regional Medical Center. As Program Director, Montell managed day-to-day activities of the wound center, including supervising employees, performing community education, reporting charges to Medicare, overseeing the handling of reimbursements, and meeting with hospital representatives.
During her employment, Montell “struggled with aspects of her job.” In November 2010, Day placed Montell on a Performance Improvement Plan. In April 2011, DCS issued Montell a Final Warning. The Final Warning notified Montell that failure to improve her performance could result in her termination. The Final Warning was amended on May 3, 2011 because of a complaint against Montell regarding the handling of reimbursements. Rather than having her employment terminated, Montell was given additional time to show improvement. The Amended Final Warning notified Montell that she was “operating on a 30 day action plan” and if her performance did not improve, “termination will be the next step.” There were no complaints regarding Montell’s performance between May 3, 2011 and May 23, 2011.
“Don’t Call HR On Me”
Montell testified that throughout her time working for him, Day would comment on her appearance at every opportunity. While she first took these comments as compliments, Day became more aggressive with the comments. For example, Day stated, “nothing turns me on more than a woman in a red dress and heels,” while Montell was wearing a red dress and heels. Day would often preface the comments about his sexual arousal with “don’t call HR on me” or “you can get me in trouble.” Montell testified that Day’s increasingly aggressive comments scared her. She would attempt to avoid Day when he would come to Frankfort Regional Medical Center.
On May 19, 2011, Montell reported Day’s sexual harassment of her to a human resources representative named Lee. Lee notified Day of the sexual harassment complaint almost immediately. On the following day, according to Montell, Day called her and told her to resign or else he would fire her. Day also called the hospital liaison at Frankfort Regional Medical Center and stated that Montell had resigned on May 20, 2011. The liaison asked Montell whether she had resigned as Day alleged, and Montell denied resigning. Montell then again called Lee to report Day’s ultimatum and requested that Day be reprimanded for retaliating against her for making a sexual harassment complaint. Feeling intimidated and threatened, Montell resigned on May 23, 2011.
Employer’s Ultimatum Is Unlawful Retaliation
The trial court dismissed Montell’s retaliation claim. On appeal, the U.S. Sixth Circuit Court of Appeals reversed the trial court’s decision and reinstated Montell’s retaliation claim. In finding that Montell had presented sufficient evidence to establish that DCS forced her to resign in retaliation for complaining about sexual harassment, the Sixth Circuit focused on two pieces of evidence. First, the appellate court pointed out that Day, “soon after finding out that Montell had lodged a sexual harassment complaint against him, called Montell and told her to resign or that she would be fired.” Second, the court of appeals observed, Day called the hospital liaison at Frankfort Regional Medical Center and “told the liaison that Montell had resigned before Montell had done so, thus undermining Montell’s ability to remain on the job.” From this evidence, the Sixth Circuit concluded, a reasonable jury could find that Day’s ultimatum to Montell and call to the hospital liaison were done for the purpose of forcing Montell’s resignation in retaliation for her sexual harassment complaint against Day.
Free Consultation With Inverness Harassment Lawyers
Based in Ocala, Florida and representing employees throughout Central Florida, we have been fighting for the rights of sexual harassment victims for nearly twenty years. If you have been the victim of sexual harassment or have questions about your protection against retaliation for complaining about sexual harassment, please contact our office for a free consultation with our Citrus County, Florida sexual harassment attorneys. Our employment and labor law attorneys take sexual harassment cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.
