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Wednesday, June 4, 2014

Firing caused by a jilted co-workers statements may be liable for a sexual discrimination lawsuit

J. Daniel Marr

If a worker is fired as a result of being maligned by a jilted co-worker, it’s possible the employer may be liable for sexual discrimination under federal law.

On May 23, the Federal First Circuit Court of Appeals found that an employer may be held liable under federal discrimination law Title VII if the worker, after rebuffing the sexual advances of a co-worker, gets maligned by that co-worker, which causes him to be fired. ...

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If a worker is fired as a result of being maligned by a jilted co-worker, it’s possible the employer may be liable for sexual discrimination under federal law.

On May 23, the Federal First Circuit Court of Appeals found that an employer may be held liable under federal discrimination law Title VII if the worker, after rebuffing the sexual advances of a co-worker, gets maligned by that co-worker, which causes him to be fired.

This court ruled for the first time as to what happens when the jilted co-worker who causes the firing is not a supervisor of the fired worker.

The case was Antonio Velazquez-Perez v. Developers Diversified Realty Corp.

While the case came out of Puerto Rico federal trial court, appeals from that court go to the First Circuit Court of Appeals, which also hears appeals from the Massachusetts and New Hampshire federal trial courts, and therefore this decision is a legal, binding precedent for New Hampshire and Massachusetts federal employment cases.

In that case, Velazquez-Perez claimed, among other things, that he was fired after rebuffing the advances of a co-worker who worked in the human resource department.

In June 2007, Velazquez-Perez worked as an operations manager for the company that owns and operates shopping centers. In November 2007, the company promoted him to regional general manager, a position that he held until he was fired Aug. 25, 2008.

The court decided that Velazquez-Perez could go forward with his case to a jury to attempt to prove that Rosa Martinez, a human resources manager, made it clear to Velazquez-Perez on several occasions of her desire to have a sexual relationship with him even though both of them were married and that Martinez threatened Velazquez-Perez with being able to have him fired if he would not engage in that sexual relationship.

Martinez sent an email to Velazquez-Perez after he rebuffed her sexual advances stating, “I don’t have to take revenge on anyone; if anybody knows your professional weaknesses, that person is me.”

In another email in the same chain, Martinez wrote, “You disappoint me and … are not even half of what you boast you are. … I cannot allow any of you to risk the team’s success.”

Further supporting Velazquez-Perez’s perception that Martinez was threatening him, he cited testimony from one of their co-workers who reportedly heard Martinez tell Velazquez-Perez, “You are nothing without me,” in a way that the co-worker took to be intimidating.

After preparing information for disciplinary actions, when Martinez learned that Velazquez-Perez’s boss planned on putting Velazquez-Perez on a personal performance plan instead firing him, went to that boss’s superiors and strongly recommending firing Velazquez-Perez.

The court found that a reasonable jury could conclude that the company was negligent in allowing Martinez’s acts to achieve the desired effect of getting Velazquez-Perez fired based upon his rebuffing her sexual advances.

The court found that there was evidence that a reasonable jury could conclude that Velazquez-Perez was fired because of vengeful acts of his jilted co-worker and that the company should have known this, making it liable for a wrongful discharge under federal employment discrimination law.

In this case, there appeared to be co-workers’ statements and email threats from Martinez that supported Velazquez-Perez’s assertions that Martinez was out to get him fired because he rebuffed her sexual advances.

Employers in considering any disciplinary act should always carefully analyze the source of the information and assess its credibility.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan P.A., whose legal practice includes counseling businesses and businesspeople, including professionals, on a variety of legal issues and advocating on their behalf. Marr is licensed and practices in New Hampshire and Massachusetts. He can be reached at dmarr@nashualaw.com.