On Friday, the Sixth Circuit affirmed an employer’s summary judgment on a retaliation claim. Crisp v. Scioto Ambulance District, No. 25-3885 (6th Cir. 2026). The plaintiff had reported to a supervisor an incident of sexual harassment several years earlier, but never filed a Charge or lawsuit even though the alleged harasser suffered no disciplinary action after being scheduled on separate shifts. More recently, she showed at work pornographic pictures of the alleged harasser and his wife to new female co-workers which were online and was promptly fired for creating a hostile work environment. “If [she] had a legal claim based on [his] alleged misconduct, she should have pursued it. [His] alleged wrongs at work did not give [her] the right to show alleged pornography while on the job.” In other words, “ [w]hen an employee engages in both protected and unprotected conduct under Title VII, she cannot use the protected conduct to seek shelter from a firing that is based on her unprotected conduct.”
According to the Court’s opinion, the plaintiff and alleged
harasser worked together as EMTs for the City ambulance department and he
frequently sexually harassed her with lewd comments. She learned that he had posted pornographic images
of himself on a public website profile seeking partners outside of
marriage. They later come to work
together again at the County ambulance district. Again, he engaged in horseplay and once
groped her. After she reported it to a
supervisor, he suffered no disciplinary action, but was scheduled on different
shifts from her thereafter. She let
anyone who would listen know that she found him to be a pervert, etc., but pursued
no legal or administrative action. Several
years later, after some new female EMTs were hired (including his wife), she
felt compelled to warn them about him by showing them the pornographic images
he had posted (and possibly some that included his wife). The employees complained and, following an
investigation, the plaintiff was fired for creating a hostile work environment
for showing pornographic images in the workplace when simply providing a verbal
warning would have been sufficient. She
filed suit for retaliation.
Federal and state law ban
retaliation against an employee for opposing an employer’s discriminatory
practices. . . . So an employer cannot fire an employee for
simply telling her co-workers that she is being sexually harassed at work. . .
.
. . . .
Displaying the [his] alleged
Fetlife profiles to other co-workers while at work was not protected activity.
True, [the plaintiff] complained that [he] had made inappropriate comments and
had touched her inappropriately while on their shift. If that happened, [his]
conduct was deplorable and sanctionable. See, e.g., Ohio Rev. Code § 2907.06(A)
(sexual imposition); Ohio Admin. Code § 4765-9-01(B) (EMTs must “exhibit
respect for the medical needs and personal values of . . . other EMS and
healthcare practitioners”). But that would not excuse how [she] responded.
Instead of seeking redress in a
lawful way, [the plaintiff] took matters two steps further by showing nude and
perhaps also sexually explicit images of both [the alleged harasser] and his
wife (who had nothing to do with [his] alleged workplace misconduct) to other
co-workers while at work. [She] did not need to share those images to make her
point, nor can she justify showing the images of [his] wife, given that [the
plaintiff’s] complaints of workplace harassment pertained only to [him]
himself. Even if the[y] posted these images online and publicly shared some of
this information, that does not mean that their co-workers had to be subjected
to seeing or hearing about it while on the job. In the workplace, the law
requires that some things be left unseen. The[ir] alleged Fetlife profiles are
two of them.
[Plaintiff] argues that Title VII
protects at least some of what she said and did at the meeting . . . . We agree, see, . . . . but that is not enough for her claim
to survive. When an employee engages in both protected and unprotected conduct
under Title VII, she cannot use the protected conduct to seek shelter from a
firing that is based on her unprotected conduct. . . . . Put more concretely, the mere fact that [she]
was complaining about [his] behavior did not give her the right to also show
the nude and possibly sexually explicit pictures of him and his wife. For good
reason, [she] does not argue that displaying these images while at work is
protected activity. So the fact that she may have been allowed to tell her
co-workers about [his] alleged workplace misconduct does not excuse her own
misconduct.
. . . First, to the extent that Title VII
provides a remedy for employees in a sexually charged workplace, that remedy
lies in a hostile-work-environment claim, . . . and [she] dropped that claim in her summary
judgment papers. Second, [she] does not bring a disparate-treatment claim, nor
does she argue that similarly situated EMTs at Scioto shared nude or sexually
explicit images without being fired . . . Thus, to win relief from our court, Crisp is
essentially left to persuade us that a jury could find her employer violated
Title VII when it fired her for sharing nude images of a co-worker while on the
clock. That she has not done.
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
