Wednesday, October 1, 2008
On September 12, 2008, the U.S. Court of Appeals for the Seventh Circuit decided Magyar v. Saint Joseph Regional Medical Center. This case serves as a warning as a warning to to employers. An employer in the future might want to keep an employee informed about the status of the investigation of their complaint.
The plaintiff, Jessica Magyar was a college student working at the Hospital. The equivalent of a full-time surgery scheduler position was covered by three people, one regular part-time employee who worked half-time and two PRN employees, one of which was Magyar, who worked the other half of the hours. As a PRN employee her work hours depended on the needs of the Hospital and didn't necessarily conform to regular hours, she didn't receive benefits and she was not required to accept work hours when offered. While employed there, a co-worker named Carl and 30 years older than Magyar, on two separate occasions sad in her lap and whispered i her hear that she was "pretty." Magyar reported the incidents to her immediate supervisor, Goddard, instead of thing through the ordinary harassment complaint process. Goddard agreed to speak to Carl and did speak to Carl later that day. Magyar heard nothing about the complaint, but also suffered no further harassment by Carl.
Hearing nothing and "fearing that at any moment there might be a third incident," Magyar next went to the Hospital's General Counsel and Organizational Integrity Officer, Wade, complaining about Goddard's failure to respond to the complaint. Wade instructed Goddard to meet with Magyar again. Approximately a week later, Goddard informed Wade that Magyar's issues "are resolved."
A couple of weeks later, Magyar found her part-time job posted on the hospital job listing, an act she deemed retaliatory. Goddard had arranged to consolidate Magyar's job and that of another part-time staffer into a single full-time position for legitimate business reasons. Magyar received no further work and was eventually terminated because she did not work enough hours.
The Court of Appeals reversed summary judgment, holding that Magyar presented genuine issues of material fact about participating in a protected activity, establishing a causal link to the adverse action and the employer's defense that Magyar's job would have been eliminated anyway.
The majority finds that Magyar's complaints to Wade about Goddard's investigation was protected activity, that a causal connection between the protected activity and the adverse action and the employer's defense at most raised another material fact to be decided by the jury.
In his dissent, Judge Posner views Magyar as a disgruntled employee who is trying to set up a retaliation claim by complaining about the processing of her sexual harassment complaint. Therefore, he determines that no reasonable jury could find that the Hospital's actions were retaliatory, however, even if a jury could, it could not find that the "retaliation was for statutorily protected activity, that is, for 'oppos[ing] any practice made an unlawful employment practice by [Title VII].'"
Judge Posner argues that "[t]he majority's reasoning places employees such as Pam Goddard in an impossible position: If the employee reacts indignantly to being complained about, this is taken as evidence of retaliation; but if she reacts by admitting that the complaint about her to her superior is justified, or by not protesting seems tacitly to admit that, she sets herself and her company up for a lawsuit (with the admission as evidence for failing to handle a claim of sexual harassment in accordance with Title VII."
I disagree with the majority in this case. It seems that Judge Posner is correct. Magyar's complaint about the processing of her sexual harassment complaint is not protected activity under Title VII. An internal investigation is not a practice made an unlawful employment practice by Title VII. It is rather a complaint about the handling of an internal investigation which is an internal business decision.