Get Your Story Straight!

By Alyssa Levy

An employer’s facts in an investigation did not match those it reported to the EEOC in response to the same allegations. The employer created its own factual discrepancy, and based on the discrepancy, the 7th Circuit reversed the employer’s summary judgment.  In this case, the Plaintiff reported to Human Resources that a manager was engaged in sex harassment towards another employee.  Days later, HR started a separate investigation into Plaintiff’s own conduct at an offsite event with company vendors six weeks earlier.  At the event, Plaintiff took photos of a vendor’s CEO, drunk.  The employer fired Plaintiff for taking such photos of the valued partner.

The Plaintiff filed an EEOC charge for retaliation based on her reporting the sex harassment.  In response to the EEOC charge, the employer said the decision-maker saw the photos the night they were taken and was not amused, but when Plaintiff’s claims reached court, the employer’s story changed.  Suddenly, the decision-maker had heard nothing about the photos until HR started an investigation 6 weeks after the event.  The District Court granted summary judgment for the employer, but the 7th Circuit ruled factual disputes required a trial.

If the employer had presented a single version of the facts, it might have kept its summary judgment ruling.  Either story – that the decision maker had or had not seen the photos before the investigation – would have worked.  But not both.  In the end, the double talk compromised the employer’s defense.  This once again highlights the extraordinary legal significance of position statements and reminds us to take the position statement process very seriously.

The case is Donley v. Stryker Corp. , No 17-1195 (7th Cir. Oct. 15, 2018).