Personal Journal May Be Protected Activity

By Alyssa L. Levy

In Fischer v. Sentry Ins. A Mutual Co., an employee kept a log of when she felt sexually harassed or discriminated against by her employer. The log went missing shortly before the company fired her. In her retaliation complaint, the employee essentially asked the Court to infer her employer was aware of the log and that it was no coincidence they fired her after becoming aware of her list of harassment and discrimination. The Court found that although the employee’s theory was speculative, it was plausible, and her retaliation claim survived the employer’s motion to dismiss.

In the end, for the log to constitute protected activity under Title VII, the employee will still be required to prove the employer actually knew of her complaints in the written log.  At only the pleading stage, however, the Court steered away from dismissing the claim before the employee had a chance to conduct discovery about her employer’s knowledge and notice of her complaints. The court reasoned that outright dismissal would discourage employees from keeping a written record of discrimination or from planning future lawsuits for fear of retaliation if their notes were found by their employer, and protecting such employee activity is the purpose of the Title VII retaliation provision.

Fischer v. Sentry Ins. A Mutual Co., No. 19-cv-00156-bbc, 2019 U.S. Dist. LEXIS 214434, at *1 (W.D. Wis. Dec. 10, 2019)