Jury Upholds Employee's Termination After Admission of Post-Incident Evidence Reflecting Subjective Consent to Alleged Harassment.

Last week, the Sixth Circuit affirmed an employer’s jury verdict on Title VII  retaliatory discharge claims where the employee had alleged that she was raped by a security guard, but the employer contended that the contact was consensual and violated its policy when she was still on-the-clock.  Graf v. Morristown-Hamblen Hosp. Ass’n, No. 24-5798 (6^th Cir. 9-10-25).  Summary judgment was granted to the employer on her hostile work environment claims, which were not part of this appeal.  Evidence of her post-incident interactions and communications with the guard were relevant to show whether she subjectively believed that he violated Title VII during the alleged incident and, thus, whether she engaged in protected conduct when she reported that he had raped her.  The jury believed that the incident was consensual, and thus, she did not have a good faith belief that she was reporting a Title VII violation.  The trial judge did not violate Federal Rule of Evidence 412 when he permitted the introduction of such evidence – limited to her interaction with that particular security guard –as evidence of her subjective belief regarding consent.

According to the Court’s decision, the plaintiff became friendly with a security guard, hired through a contractor of the employer.  They exchanged hundreds of texts and frequently met during breaks in stairwells and other places.  The guard contended that they sometimes discussed intimidate details, but the plaintiff disagreed that she ever initiated such conversations.  One day, at the guard’s invitation, the plaintiff snuck during her lunch break – when she was not required to clock out -- into an unauthorized area to avoid being seen by the employer’s security cameras.  She contended that she was handcuffed and raped.  He contended it was consensual and she never used their before-agreed safe words.  She did not report the incident and returned to work after crying in the bathroom.  However, they continued to text and exchange naked photos of each other after the alleged rape.  She claimed that she had been to afraid to not comply. Six weeks later, she learned from his supervisor that he had been accused of sexual harassment by other female staff and she then reported the rape.  He was fired. 

When the employer’s HR learned of it, they also interviewed her, but did not conduct a further investigation since the guard had already been fired.  However, the employer decided to terminate her employment because she was in an unauthorized location, where she had snuck into to avoid being videotaped by security cameras, and had relations while still on the clock.   She brought suit for sexual harassment and retaliatory discharge.   The trial court dismissed the sexual harassment claim on summary judgment.  A jury ruled in the employer’s favor after the court admitted evidence about her alleged consent to the interaction with the guard -- as reflected in the post-incident texts, photos and videos -- and rejected her allegation that she had been fired for reporting the alleged rape to the guard’s supervisor.

The trial court refused to admit evidence about her conversations with others about her sexual preferences and videos that she had exchanged with the guard.  However, it admitted the texts and photos which she exchanged with the guard after the incident and the fact that she had also sent videos.  The court found the jury could decide whether she had consented or not in determining whether she had a good faith and reasonable belief that her conduct was protected by Title VII.   The Sixth Circuit agreed that this did not violate Federal Rule of Evidence 412.

Rule 412 provides in relevant part that certain evidence is not admissible. 

Federal Rule of Evidence 412 prohibits the admission of two types of evidence in cases involving sexual misconduct: “(1) evidence offered to prove that a victim engaged in other sexual behavior; or (2) evidence offered to prove a victim’s sexual predisposition.”

However, the second part of the Rule as exceptions in civil cases: “the court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.”  This Rule interacts with sexual harassment cases in cases like these where the plaintiff’s consent is an issue.  In this case, the plaintiff's consent was an issue as to whether she subjectively believed that the guard had violated Title VII when she reported him. 

“[a] person opposing an apparently discriminatory practice does not bear the entire risk that it is in fact lawful; he or she must only have a good faith belief that the practice is unlawful . . . . In the years since Booker, we have interpreted this language to mean that, in order to prove that they engaged in protected conduct, a retaliation claimant must demonstrate “that the opposition [was] based on ‘a reasonable and good faith belief that the opposed practices were unlawful.’” . . .

In holding that the protected-conduct element of a retaliation claim includes this reasonable and good-faith requirement, however, we have been careful to clarify that “the operative question is not whether [the complained of] conduct was actually unlawful, but whether Plaintiff held an objectively reasonable and good faith belief to that effect.”  . . .  A retaliation claimant therefore “does not need to oppose actual violations of Title VII in order to be protected from retaliation.” . . .

The dispute at the center of this case lies at the intersection of these two concepts. In alleging that [the employer] retaliated against her for opposing sexual assault, [The plaintiff] can succeed on her retaliation claim even if [the guard’s] conduct was not, as a legal or factual matter, sexual assault. But [she] must prove that she had a reasonable and good-faith belief that the conduct of which she complained was unlawful under Title VII. In other words, she must show that her belief that she was raped was reasonable and in good faith.

Importantly, the plaintiff was not required to prove that she was the victim of a sexual assault, but she was

required to demonstrate her reasonable and good-faith belief that [the guard’s] conduct violated Title VII. And [the employer]  was entitled to introduce evidence rebutting [her] alleged good-faith belief in the purported violative conduct she had reported, including evidence that [she] had consented to the sexual encounter, because such evidence was directly relevant to the reasonableness of [her] belief in whether Title VII prohibits that conduct. . . . 

 . . . . But our inquiry is not whether a rape violates Title VII (it does)—our inquiry is whether [she] had a good-faith belief that [he] raped her at work. Therefore, although we need not determine whether [he] raped [her], we must consider whether [she] “held an objectively reasonable and good faith belief” that she reported a legitimate rape. . . .

To be sure, we have noted that a lack of reasonable and good-faith belief may stem from “an unreasonable mistake of law.” Wasek, 682 F.3d at 469. And a retaliation plaintiff could make an unreasonable mistake of law by believing that conduct outside the scope of Title VII’s protections was conduct falling within the statute’s protections. But we have also stated that a plaintiff may fail to satisfy the reasonable and good-faith belief standard where “there are not facts from which a plaintiff could have reasonably believed that a violation occurred.” Id. And while we have yet explicitly to so hold, several of our sister circuits have made clear that Title VII retaliation plaintiffs do not engage in protected conduct when they make a false, fabricated, or malicious complaint of unlawful conduct because such plaintiffs do not reasonably and in good faith believe in the truth of their complaint.  . . . (emphasis added).

 . . . . The district court thus did not err in concluding that, in proving her retaliation claim to a jury, Graf was required to demonstrate that she reasonably and in good faith believed that, when she made her complaint against Ogle, she was reporting a rape. “Whether she actually held such a belief, a question of credibility,” was necessarily “left to [the] jury.” 

The Court agreed that propensity evidence must still be excluded as would reputational evidence.  What was relevant was her subjective belief as evidenced by her own actions with the security guard.

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.

OWBPA Exhibits Are Admissible to Challenge Whether Plaintiff Was Terminated as Part of RIF or as Pretext

Last month, the Summit County Court of Appeals reversed an employer’s summary judgment on an FMLA retaliation claims because the trial court had not considered the attachments to separation agreements (required by the OWBPA) showing the number of employees selected for a reduction in force and severance pay to impeach the employer’s explanation for the plaintiff’s termination.  Kane v. Inpatient Med. Servs., Inc., 2019-Ohio-1975.  The plaintiff argued that the employer’s failure to include her on one of the exhibits shows that she was not actually terminated as part of the reduction in force, but the trial court excluded the exhibit as evidence of a compromise.  The court of appeals held that Rule 408 only bars such evidence to impute liability and its amount, and not to impeach a witness.  The Court, however, agreed that the plaintiff’s jury trial waiver was valid.


According to the Court’s opinion, the defendant employer purchased the company for which the plaintiff had worked for two years as a regional vice president shortly before she began maternity leave. The plaintiff was terminated when she returned from her second maternity leave and was told that her position had been eliminated as part of a reduction in force.  She filed suit alleging FMLA interference and retaliation and the trial court granted summary judgment to the employer.  The trial court refused to consider two exhibits which the plaintiff had submitted in an attempt to show that the employer’s stated explanation was pretextual.   The first was an unsigned separation agreement which contained the exhibits required under the Older Worker Benefit Protection act reflecting the lay off of only 14 Indiana employees of company acquired by the employer and which did not include the plaintiff.  The second was the same exhibit from a different separation agreement which reflected that only she and the company president had been laid off.   Both of these, she claimed, conflicted with the employer’s answers to interrogatories that 15-20 employees had been laid off and from which entities had been laid off in the reduction in force. The Court of Appeals remanded for the trial court to consider these exhibits.


Ohio Rule of Evidence 408 prohibits the consideration of offers of compromise to show either liability or the amount of liability.  The rule further provides that:

Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Because the plaintiff was not attempting to use the exhibits to show liability or the amount of liability, the exhibits were admissible to impeach the employer’s explanation for her termination as required to show that its explanation was pretextual. 


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 be changed or 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.

Ohio Appeals Court Lowers $46.5M Damage Award to $10.5M In Retaliatory Discharge Case

Last Thursday, the Cuyahoga County Court of Appeals ruled that Ohio's Tort Reform Act required the reduction of $43M in punitive damages to no more than $7M (which was twice the amount of compensatory damages awarded by the jury) in a retaliatory discharge case brought under the Ohio Civil Rights Act. Luri v. Republic Servs., Inc., 2011-Ohio-2389. In that case, the plaintiff general manager alleged that his employer manufactured a reason to fire him in April 2007 in violation of Ohio Revised Code § 4112.02(I) after he refused to fire the company's three oldest employees in November 2006. He had protested that one of the older employees had strong performance evaluations and could sue the company for age and disability discrimination. In addition, the plaintiff presented evidence that the defendants had altered and/or fabricated evidence to support its illegal termination decision and then refused to waive his non-competition agreement after firing him.

The Court held that the trial court did not abuse its discretion in refusing to bifurcate the trial (between liability and damages) because the evidence that proved liability was also relevant to the defendant's bad faith, justifying punitive damages. In particular, evidence that the defendants had manufactured evidence proved not only guilty intent in the termination decision, but also bad faith. The Court refused to find an error in the jury instructions because the defendants had failed to ask in the jury interrogatories or instructions for the economic and non-economic damages to be separately specified. In addition to the $3.5M in compensatory damages awarded by the jury, the trial court also awarded over $1M in attorney fees and prejudgment interest. However, the Court of Appeals found that the Tort Reform Act at Ohio Revised Code § 2315.21(D) limited the punitive damages to twice the amount of compensatory damages and those damages should be imposed collectively, rather than per plaintiff. Otherwise, the amount of the $43M punitive damage award did not shock the Court's conscience or constitute a violation of due process under the circumstances.

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.

When an Affirmative Action Plan Constitutes Evidence of Reverse Discrimination.

Last month, the Ohio Court of Appeals in Dayton rendered a decision which highlights the need to conduct a focused availability analysis when preparing an affirmative action plan. In that case, the Court reversed a directed verdict in favor of the employer and reinstated a reverse race and gender discrimination claim for trial by a jury based, in part, on a sloppy affirmative action plan which relied simply on census data instead of a focused availability analysis. Mitchell v. Lemmie, 2007 Ohio 5757 (10/26/2007).

In Mitchell, the Plaintiff had applied to be promoted to a division manager position. That position had been filled by an African-American female who had no prior experience in that division (unlike the Plaintiff), who had worked her way up from a secretarial position and who had been placed in the position without any competitive hiring process. She and the Department Superintendent recommended to Lemmie, the City Manager, that plaintiff be promoted to replace her, but Lemmie refused without any explanation and a national search was conducted to fill the position. (This woman was also promoted two more times without a competitive process). The Plaintiff was ultimately ranked second of the available candidates and presumably should have received the job after the top and third ranked candidates withdrew from consideration, but Lemmie again without explanation refused to promote the Plaintiff into the position. There was testimony that she only gave the Plaintiff a brief courtesy interview for the job. She posted the job again for another national search, this time with an emphasis on recruiting qualified African-Americans. The position was then offered to an African-American male, who turned it down because of the low salary. The other two top candidates were rejected for other reasons. Finally, a female African-American was recommended to Lemmie and she was hired after applying and interviewing for the position. The successful candidate was paid $15,000 more than the Plaintiff had been paid while serving in an interim capacity.

The qualifications for the position remained the same throughout all of the searches.

Many years before the events of the litigation, the employer had adopted an affirmative action plan which professed a goal of employing individuals in the same number as reflected by the demographics of the local population. “While no applicant should ever be accepted or rejected for employment or promotion based solely on race or gender, the City recognizes Affirmative Action as a moral and legal responsibility. The race or sex of an applicant is a legitimate factor to be considered in selecting appointees to positions where certain demographic categories are underutilized from a group of candidates with nearly equal qualifications.” Ten percent of the performance evaluation of each division manager was to be based on compliance with the AAP. “Each department was given yearly objectives, which were to be included in the performance contract of each department director. These objectives were computed by a specific method, based on the percentages of African-Americans and women in the total general workforce of the City of Dayton (37% and 46%, respectively).” The AAP also provided that “[t]he formula used to calculate the number of minorities and females in the workforce was based solely on demographic information from the U.S. Census Bureau, with the terms “population, working or seeking employment” and “general workforce” to mean the general population of working age.

The Court found that the defendant employer’s failure to calculate its hiring goals based on the number of qualified women and minorities in the workforce (instead of based on the general working age population) doomed the AAP. When an AAP “ simply calculated imbalances in all categories according to the proportion of women in the area labor pool, and then directed that hiring be governed solely by those figures, its validity fairly [can] be called into question. This is because analysis of a more specialized labor pool normally is necessary in determining underrepresentation in some positions. If a plan failed to take distinctions in qualifications into account in providing guidance for actual employment decisions, it would dictate mere blind hiring by the numbers, for it would hold supervisors to ‘achievement of a particular percentage of minority employment or membership ... regardless of circumstances such as economic conditions or the number of available qualified minority applicants.” quoting Johnson v. Transportation Agency, Santa Clara County, Cal. (1987), 480 U.S. 616, 636.

Unlike the Johnson AAP, the Court noted that the defendant employer’s AAP “failed to acknowledge that imbalance cannot, in itself, justify taking race or sex into consideration. Also unlike the plan in Johnson, Dayton’s Plan calculates imbalances based solely upon the respective proportion of African-Americans and women in the local labor force (37% and 46%, respectively), not upon the proportion of skilled workers.” None of the hiring goals were based on an analysis of the local workforce with the requisite skills or education. “As structured, Dayton’s Plan dictates “mere blind hiring by the numbers.”

The Court agreed that use of an AAP by itself does not constitute unlawful discrimination. However, “the existence of an affirmative action plan, when combined with evidence that the plan was followed in an employment decision, is sufficient to constitute direct evidence of unlawful discrimination unless the plan is valid. * * * Furthermore, even when a defendant denies having acted pursuant to its affirmative action plan, if there is evidence that it may have done so, a jury must decide whether the defendant in fact acted pursuant to its stated plan.” quoting Bass v.Bd of County Commrs, Orange County, Fla. (11th Cir, 2001), 256 F.3d 1095, 1111. In fact, “an affirmative action plan may constitute direct evidence, even when a defendant denies having acted pursuant to its stated plan.” Id. Even in a reverse discrimination case based on the indirect method of proof, the AAP could be used to show background circumstances supporting conditions for reverse discrimination.

In reversing the employer’s directed verdict, the Court was also influenced by a number of factors, including:

• Lemmie’s failure to follow traditional hiring procedures. In particular, there had been evidence that the City Manager typically accepted the hiring recommendations of subordinates, but she rejected two recommendations to hire the Plaintiff;


• The employer’s inconsistency in implementation of the hiring process, such as appointment of other promotional candidates (in other positions) without competition, while the division manager position was subjected to several competitions and searches;


• Lemmie’s failure to articulate reasons to her subordinates (before the litigation commenced) for refusing to promote the Plaintiff. “While Lemmie may have felt that she was not obligated to explain her actions to anyone, the absence of an explanation at a time when it might logically have been expected is suspicious.”


• Lemmie’s membership and leadership position in an organization designed to increase the number of African-Americans as public service executives. Lemmie was an officer of a professional association that professed a “commitment to strengthen the position of blacks within the field of public administration, to increase the number of blacks appointed to executive positions of public service organizations, and to groom and prepare young aspiring administrators for senior public management in the years ahead.” Most of the local members worked for the City and the City paid the dues for a number of the member employees. Lemmie eventually offered the job to a female African-American applicant recommended to Lemmie through this organization even though no other candidate was sought at that time.


• The employer’s financial support of employee membership in NFBPA;


• During Lemmie’s tenure, only African-American and females were sent to executive and leadership training at the Executive Leadership Institute and the Leadership America Institute.


• There was also evidence that the successful candidate was not as qualified for the position as the Plaintiff.


• Lemmie cited factors for her decision which were not included on (and had been actually crossed off ) the interview rating sheets and disclaimed factors (such as union relations) which were included on the rating sheet (and on which only the Plaintiff had significant experience).
  
  
  Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/newpdf/2/2007/2007-ohio-5757.pdf.
  
  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. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.