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Court Finds That Alleged Sexual Harasser’s Retaliatory Intent Can Be Imputed To Employer For Purposes Of Retaliation Claim

Woman holding a sexual harassmentsign

Under Title VII of the Civil Rights Act of 1964 (Title VII), employees are protected from retaliation for complaining about sexual harassment in the workplace.  Having long represented employees victimized by retaliation for making a sexual harassment complaint, our Central Florida retaliation attorneys have learned that when a complaint is made against a sexual harasser who does not have the authority to terminate the victim, the harasser will often take retaliatory action against the victim, such as meritless disciplinary actions or feeding false information to management, in order to bring about the victim’s termination.  Under such circumstances, the sexual harasser’s actions are the actual cause of the victim’s termination.  The United States Second Circuit Court of Appeals’ decision in Vasquez v. Empress Ambulance Service, Inc., 835 F.3d 267 (2d Cir. 2016) illustrates that employers are not immunized from retaliation claims when the harasser’s actions, and the retaliatory intent behind them, bring about the victim’s termination even when the harasser did not pull the trigger.

Victim Makes Complaint Against Alleged Sexual Harasser

In that case, Andrea Vasquez (Vasquez) brought a retaliation claim under Title VII against Empress Ambulance Service, Inc. (Empress) asserting that she was fired in retaliation for complaining about sexual harassment.  Vasquez worked for Empress as an emergency medical technician on an ambulance crew.  During her employment, a co-employee named Gray began expressing romantic interest in Vasquez.  Vasquez alleged that Gray constantly asked her out on dates, attempted to flirt with her, and repeatedly put his arm around her shoulders.  Vasquez’s alleged that Gray’s behavior escalated when told her that he could make her leave her boyfriend and promised to “send . . . something between you and me.”  Around midnight that same day, while out on shift, Vasquez received a picture message from Gray:  a photograph of his erect penis, captioned “What u think.”  Vasquez did not respond to the message and continued to work.

When she returned to Empress’ office early than morning, Vasquez reported the incident to a supervisor.  The supervisor asked Vasquez to prepare a formal complaint right away.  As Vasquez was preparing her complaint on a computer in the workplace, Gray entered the room, observed Vasquez crying, and asked whether she was reporting him.   When Vasquez did not respond, Gray left the room and began discussing Vasquez’s likely complaint with another employee.  Gray asked the employee to “lie for him” and tell their supervisors he was involved in a romantic relationship with Gray.  The employee refused and Gray left the building.

Alleged Sexual Harasser’s False Allegations

After Vasquez’s finished her complaint, a member of the human resources department arrived to discuss what had happened.  The human resources employee thanked Vasquez for “telling her story” and promised to “sort the situation out.”  When Vasquez offered to show her Gray’s messages on her cell phone, the human resources employee rejected her offer.  In the meantime, Gray continued with his attempts to undermine the complaint he anticipated from Vasquez.  Gray edited a text message on his cell phone to make it appear as if he and Vasquez had participated in a consensual sexual discussion.  Gray then showed the edited text message to management in order to prove that he and Vasquez had been in a consensual sexual relationship. 

After Gray submitted the edited text messages to management, Vasquez met with the owner of Empress and the human resources employee.  The owner informed Vasquez that they “knew the truth” as they had spoken with Gray and had seen his “proof” of her inappropriate conduct by means of “pictures and text messages.”  The human resources employee further informed Vasquez that Gray had shown them a “racy self-taken photo” that Vasquez had allegedly sent in response to Gray’s picture of his erect penis, which they considered “proof that Vasquez had been sexually harassing Gray.” 

Although Vasquez vehemently denied the allegations and maintained that Gray was lying, the human resources employees insisted that they “had all seen the photograph” and “knew it was her in the photo.”  When Vasquez asked to see the photo, the human resources employee refused.  In an attempt to show that no such communications or photos occurred, Vasquez once again offered to show them her own cell phone.  The owner and the human resources rejected her offer.  The owner and the human resources employee then fired Vasquez for engaging in sexual harassment.

Employer’s Own Negligence Is Basis For Retaliation Liability

The trial court dismissed Vasquez’s retaliation claim finding that Gray’s retaliatory intent could not be attributed to Empress because Gray did not make the decision to fire Vasquez.  Rather, the trial court reasoned, the owner and the human resources employee made the decision to fire Vasquez.  On appeal, the Second Circuit reversed the trial court’s decision and reinstated Vasquez’s retaliation claim.   

At the outset of its opinion, the Second Circuit pointed out that Vasquez was seeking to hold Empress liable for retaliatory discharge by imputing Gray’s retaliatory intent to Empress because Gray had intended to bring about her termination.  Under the circumstances, the appellate court observed, Vasquez had to impute Gray’s retaliatory intent to Empress because there was no evidence that the owner or human resources employee acted with retaliatory intent.  An employee’s retaliatory intent can be imputed to an employer, the appellate court explained, when the employer acts negligently with respect to the information provided by the employee and allows the employee’s retaliatory intent to achieve its desired effect.   

In applying this standard to the facts, the Second Circuit held that a reasonable jury could find that Empress acted negligently in firing Vasquez solely on the basis of Gray’s accusations.  The negligence of Empress, the appellate court reasoned, was “in crediting Gray’s accusations to the exclusion of all other evidence, and specifically declining to examine contrary evidence tendered by Vasquez, when it knew or, with reasonable investigation, should have known of Gray’s retaliatory animus.”  As a result of Empress’ negligence, the Second Circuit concluded, “Gray achieved a meaningful, and indeed decisive, role in Vasquez’s termination.”  In other words, because “Empress’ negligence permitted Gray’s retaliatory intent to achieve its desired effect—Vasquez’s termination—her claim for retaliation against Empress” was allowed to proceed.

Free Consultation With Central Florida Retaliation Attorneys   

Based in Ocala, Florida and representing employees throughout Central Florida, we have substantial experience representing employees who have been retaliated against for complaining about sexual harassment in the workplace.  If you have been retaliated against, or have questions about a sexual harasser’s retaliatory acts, please contact our office for a free consultation with our Central Florida retaliation lawyers.  Our employee rights law firm takes employment retaliation 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. 

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