Labor & Employment Law

Retaliatory dismissal

By Harvey Randall, Esq.

Retaliatory dismissal
Lipphardt v Durango Steakhouse, CA11, 267 F.3d 1183

An employee has a consentual intimate relationship with a co-worker. After discontinuing the relationship the employee tells the employer that he or she is being subjected to harassment by the co-worker and as a result, is terminated. These were the events leading to the Mary Hope Lipphardt's lawsuit against Durango Steakhouse.

The issue before the Circuit Court of Appeals: is an employee who was formerly involved in an intimate relationship with a co-worker precluded from bringing a claim against the employer for retaliatory discharge if the employee is fired after reporting former boyfriend's or girlfriend's harassing conduct to their mutual employer?

Lipphardt complained that after ending her relationship with co-worker Donald Knuth, she began having difficulties with Knuth at work. According to Lipphardt, Knuth consistently attempted to convince Lipphardt to resume their intimate relationship. After a number of off-the-job episodes, Lipphardt reported Knuth's actions and their impact on her to her supervisor and requested a transfer.

According to the decision, while Lipphardt was on a previously-scheduled vacation, Knuth was told that the company was considering firing both of them. Knuth alleged that the general manager then asked him if he knew anything that could get Lipphardt fired, as the restaurant would rather keep him and "get rid of the bitch." Knuth told the general manager that Lipphardt had given free food to the employees of a nearby tanning salon in exchange for tanning services. Lipphardt was fired upon her return from vacation.

It was established at trial that a different employee was trading food for tanning services and that Knuth had never actually seen Lipphardt engage in this practice when he made the allegation. No one followed up with Knuth regarding his allegation before Lipphardt was dismissed.

Lipphardt filed complaint alleging hostile work environment, sexual harassment, quid pro quo sexual harassment, retaliation, and negligent retention. The district court granted Durango's motion for summary judgment on the quid pro quo sexual harassment charge and, at the close of evidence, its motion for judgment as a matter of law on the claim of negligent retention.

Note: The two remaining issues were submitted to the jury. The jury returned a verdict in favor of Durango on the hostile work environment and sexual harassment issues but in favor of Lipphardt on the issue of retaliation.

The district court granted Durango's motion to vacate the jury's determination in favor of Lipphardt's with respect to her retaliation complaint "as a matter of law." Lipphardt appealed.
The Circuit Court disagreed with the lower court's ruling overturning the jury's decision. It said that "[f]ollowing the clear instructions it was given, the jury returned a verdict recognizing Lipphardt's belief that she was the victim of harassment as objective. This decision was not improper as a matter of law, as a prior intimate relationship, while important, is not a determinative factor in a sexual harassment analysis."

It also reversed the district court's order granting Durango judgment as a matter of law on Lipphardt's claim of retaliation. Further, said the court, it was remanding the matter to the district court to enter judgment for Lipphardt and award damages as decided by the jury.

Full post as published by New York Public Personnel Law on March 28, 2008 (boomark / email).