If a worker is fired as a result of being maligned by a jilted co-worker intent on revenge, it is possible the employer may be liable for sexual discrimination under federal law. On May 23, 2014, 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 and the employer acts negligently by allowing the jilted co-worker’s statements to achieve their desired effect though the employer knew or should have known of her discriminatory motivation. If the jilted co-worker was a supervisor of the fired worker, there would have more direct grounds to find the employer liable. 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 Velázquez-Pérez 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 the appeals from the federal 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, Velázquez-Pérez 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, Velázquez-Pérez became work as an Operations Manager for the company that owns and operates shopping centers. In November 2007, the company promoted him to the position of Regional General Manager which he held until he was fired on August 25, 2008. The Court ultimately decided that Velázquez-Pérez could go forward with his case to a jury to attempt to prove that Rosa Martinez, a Human Resource Manager, made it clear to Velázquez-Pérez on several occasions of her desire to have a sexual relationship with him even though both of them were married and Martinez threatened Velázquez-Pérez with being able to have him fired if he would not engage in that sexual relationship. By way of example, Martinez sent an email to Velázquez-Pérez 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 stated “you disappoint me and…are not even half of what you boast you are,” adding “I cannot allow any of you to risk the team’s success.” Further supporting Velázquez-Pérez’s perception that Martinez was threatening him, he cited testimony from one of their co-workers who reportedly heard Martinez tell Velázquez-Pérez “you are nothing without me” in a way that the co-worker thought was meant to be intimidating. Martinez also after preparing information for disciplinary actions against Velázquez-Pérez to his boss when learning that his boss planned on putting Velázquez-Pérez on a personal performance plan instead firing him went above that boss to his superiors and strongly recommending firing Velázquez-Pérez. 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 Velázquez-Pérez fired based upon his rebuffing her sexual advances.
The Court found that there was evidence that a reasonable jury could conclude that Velázquez-Pérez was fired due to the vengeful acts of his jilted co-worker Martinez and that the company should have known this so that it could be 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 Velázquez-Pérez’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 along with any recommendations of discipline to see whether objectively they are reasonable and whether there are bad motives by any of those individuals providing factual information or recommendations, such as the desire of a jilted co-worker to extract revenge.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].