We often get calls from nervous clients saying they want to fire an employee who (1) has performance or misconduct issues, and (2) recently engaged in protected conduct—e.g., complaining about sexual harassment. The Sixth Circuit recently issued an opinion that provides helpful (and explicit) insight into such situations. The plaintiff was an emergency medical technician (EMT) named Gertrude Crisp. Her coworker was Joshua Gullett. (Crisp and Gullett: perfect names for this tale of ribaldry and revenge.) The way the Sixth Circuit told the NSFW workplace story of Crisp v. Scioto Ambulance District is too good to paraphrase:
[T]he inmates run the insane asylum at [Crisp’s] former workplace . . . . Part of the craziness, Crisp claims, is a time when another EMT [Gullett] groped her and tried to stuff her into a trash can while on the job. When Crisp complained, a supervisor separated them and required that they never work the same shift, but Gullett faced no other repercussions. Crisp pursued no legal redress against Gullett or Scioto at that time. Instead, Crisp waited several years to respond, and when she did, it was in her own way crazy. One day, she recalled that there were allegedly pornographic images of Gullett and his wife online. While at work, she showed those images to several EMTs.
The employer fired Crisp for displaying the images and Crisp sued, alleging the firing was retaliatory. The Sixth Circuit noted that instead of “seeking redress in a lawful way,” like complaining to her supervisor, the plaintiff “took matters two steps further by showing nude and perhaps also sexually explicit images” of Gullett and his wife. The court added: “In the workplace, the law requires that some things be left unseen. The Gulletts’ alleged Fetlife profiles are two of them.” Ultimately, the court held that the plaintiff had failed to show that her employer “violated Title VII when it fired her for sharing nude images of a co-worker while on the clock.” This case is a valuable (graphic) reminder that employers can terminate employees who have engaged in misconduct even though they may have also engaged in protected activity. The trick is making sure that you’ll be able to show a jury that the termination was wholly due to the former (the misconduct) and not the latter (the protected activity). That appears to have been a straightforward showing for the employer in Crisp. But it’s certainly not that simple in every situation. You can read the Crisp opinion here.
