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'Outing' of Lesbian Co-Worker Violated Office Harassment Policy

An employee who violated company policy against sexual harassment by "outing" a lesbian co-worker was properly fired for this and other transgressions of company rules, a California appeals court has decided.

The 3rd District Court of Appeal rejected plaintiff Shelley Bell's argument that she was fired in retaliation for complaining about legitimate problems in the office.

Instead, it found that Adelberg Associates Medical Group produced an abundance of evidence that it had legitimate, nondiscriminatory reasons for terminating her.

Bell failed to show that AAMG's reasons for letting her go were "so implausible, inconsistent or weak that a reasonable trier of fact could find they were a pretext, used merely to veil an act of retaliation," the court said.

According to the opinion, Bell started working as a records technician for AAMG in November 2000.

Throughout her tenure with the company, her supervisor repeatedly counseled her about her inefficiency and inappropriate behavior toward other employees, the opinion says.

Bell was frequently told not to converse with employees who were not on break and not to use the telephone and Internet for personal reasons, the opinion says. These problems were described in her performance reviews for 2001, 2002 and 2003.

The company also took issue with the "ongoing inter-office spat" between Bell and co-worker Miki Patenio.

Bell, who openly discussed her breast augmentation surgery in the office, complained to management about sexual harassment when Patenio twice "grabbed and jiggled" her breasts, the opinion says. She also complained about two sexually oriented remarks and gestures Patenio allegedly made in her presence.

The company responded by conducting an investigation and warning both women to stay away from each other.

Patenio filed a written complaint against Bell in February 2003, saying Bell had exposed her as a lesbian in front of co-workers in the break room. Bell received a written warning and again was told to improve her efficiency and keep personal matters to herself.

AAMG fired Bell later that month, saying she had "ongoing productivity issues and refused to work with management."

Bell sued AAMG in the Sacramento County Superior Court, alleging discrimination in violation of the Fair Employment and Housing Act, sexual harassment, wrongful termination and retaliation. She claimed that she was fired for complaining about sexual harassment and the company's "unfair business practices."

The trial judge granted summary judgment to AAMG, and Bell appealed the dismissal of the retaliation claim.

The appeals court affirmed. It first acknowledged that Bell produced substantial evidence that she engaged in activity protected under FEHA when she complained about sexual harassment by Patenio.

However, she failed to show a causal connection between the protected activity and her termination, the panel said. Although Bell was fired just two days after her last complaint about Patenio, the evidence of her ongoing productivity and behavior problems outweighed any inference of pretext that might exist in the timing of her firing, it said.

To comment, ask questions or contribute articles, contact West.Andrews.Editor@Thomson.com.

Bell is represented by John Mounier of the Employee Rights Law Group in Sausalito, Calif.Counsel for AAMG is Michael Bishop of Matheny, Sear, Linkert & Long in Sacramento, Calif.