Sending Sexual Text Messages to a Co-Worker

If (1) the EEOC declines to make a “probable cause” determination and issues a “right to sue” notice because of the Faragher-Ellerth considerations and/or the statute of limitations considerations here and (2) the alleged victim’s attorney nonetheless files a subsequent lawsuit (a highly unlikely prospect in my opinion), then the company’s attorney should promptly file a pretrial motion to dismiss and/or motion for summary judgment contending that the victim cannot proceed under Title VII in light of her failure to overcome Faragher-Ellerth and her failure to file her administrative complaint timely. As a consequence, her case would likely be dismissed very early in the judicial process.

Again, for all the foregoing reasons, her case has little or no chance of ever proceeding to trial.

Thanks ESteele, I will run this by our lawyer and see if that is what he had in mind. Again, I'll keep you posted.

I did have another question regarding the EEOC, timing of complaint, etc... and you may have addressed this point earlier, so I apologize if I did not understand this.

If the EEOC looks at the arguments of both parties here:
1. theirs being that I allegedly harassed an employee and as they say, it continued after reprimand in other forms (ie: me doing things like exposing myself, continuing texting, and touching her). and,

2. ours being that the text stopped 6/29, she lied about texting me back and waited to report 2 wk after I stopped them (we have evidence to the contrary obviously that she texted me 50/50, responding to text and on occasion initiating them), no one in the office ever saw me make any contact with her physically (in fact I have an employee who wrote a statement saying she touched my rear in a flirtatious way once at work), the company reprimanded me with a formal report in my employee file before knowing about her text to me and the physical contact she made with me (so technically, both of us should have reprimands in our records showing that after investigation that it was mutual inappropriate conduct that was warned against by management), I avoided her except for professional necessary contact at work, and she never made any more complaints on me to management before quitting.

If our argument holds water, is there any way that the Faragher Ellerth and Title VII might not protect us? In other words, if our office found the conduct was mutual as part of a thorough investigation by the boss... that would be another layer of protection from us if it came to a lawsuit filed after the EEOC likely finds in our favor a "no cause" ruling?

And, since she only complained of texts to management and the fact that she never made any more complaints to management about me on any other actions. And that we have proof of what she complained about in its entirety stopped 6/29/11... Is it possible that the EEOC might say sorry you missed your deadline due to Faragher Ellerth and Title VII and not even make a ruling. In other words, it would be dropped without even the opportunity to go to court?

I apologize in advance. I do not know if I fully appreciate your question. As a Steelers Fan since the 1970s, the Steelers’ overtime loss to the Broncos earlier this evening may adversely affect my analytical skills. I nonetheless will do my best to respond.

Irrespective of how the EEOC eventually rules on her yet to be filed charge of discrimination, an aggrieved employee can subsequently file a lawsuit (within 90 days of receiving the Right to Sue Notice) and advance her position in court. However, I do not perceive any persuasive way the alleged victim here can overcome the Faragher-Ellerth requirements and/or the statute of limitations.

If she makes up out of whole cloth an allegation that you harassed her directly at work after you stopped texting her on or before June 29, then she will have to overcome the fact she did not complain to management about any form of harassment except for texting. Her failure to complain about other harassment to management would foreclose her from pursuing such a claim in a lawsuit pursuant to the Faragher-Ellerth paradigm. (If your company provided her with a written summary of its investigation, then this summary would bolster the company’s position that she failed to allege any other form of harassment.)

Similarly, with respect to the texting, Faragher-Ellerth precludes her from proceeding to trial. In the overwhelming majority of cases, an aggrieved employee must first report hostile environment harassment to management in order to provide the company with an opportunity to rectify the situation. Under Faragher-Ellerth, the employee would only have a viable judicial claim against the company if the harassment continued (and/or retaliation ensued) following her internal complaint to management. In this instance, the telephone records confirm that the texting ceased prior to her lodging her internal complaint and did not resume at any point thereafter.

In issuing its determination, the EEOC should analyze the situation through a Faragher-Ellerth lens and a 180 day statute of limitations lens. The EEOC could issue a determination rejecting her charge on either or both grounds. (Sometimes, the EEOC issues a Right to Sue Notice without a detailed explanation.) But, it will, in all likelihood, issue a determination of some stripe in due course. Based on the foregoing, I cannot fathom a set of circumstances which would lead the EEOC to issue a probable cause determination.

Again, do not settle! Her case gets weaker and weaker every day! Johnnie Cochran could not get her case to trial!

(I have nothing to add, except that ESteele is not alone in mourning the loss of today's game. And in such a manner...le sigh)

I agree ESteele, thank you for your replies. I cannot see how this would or could proceed to federal court... I just cannot understand why they'd want to waste time on such trivial matters considering they likely have much larger cases to deal with. That said, her lawyer has come down to $50k from $250k... still a ridiculous amount of money, and as you have suggested, coming down weakens the case even further.

Our lawyers though have stated in email to me that all cases have settlement value based on cost of litigation, and the possibility of losing a case and having to pay in the end... though they dont believe that will happen, they still issue the warning. So in other words, they are urging us to offer more settlement money than we already have, $3-5k. We have a conference with them Friday, so I'll know more by then. I will carry your advice to them in the form of questions of my own to see what they say.

"That said, her lawyer has come down to $50k from $250k... still a ridiculous amount of money, and as you have suggested, coming down weakens the case even further."

or rather shows that they have a weak case... not weakens their case. On a side note, we have apparently not offered any more money than our initial offer, only fished for new amounts from them.

I do not dispute the inherent logic concerning the cost of litigation and the remotest of possibility the alleged victim and her attorney can conjure up a viable claim. However, I take serious issue with individuals who do not have bona fide disputes but essentially seek to shake down companies with wholly manufactured claims. Based on what you have written, the victim and/or her counsel fall into the latter category.

Again, if I ran your practice, I would rather pay $10-15K to the company lawyers than to pay ten cents to this woman and her lawyer. Perhaps that is a high price to pay for principle. However, beyond principle, by not paying this employee with the flawed, dubious claim, the company will deter other employees from conjuring up their own shake down schemes in the future.

She misrepresented the nature of your consensual relationship for potential profit! More fundamentally, as discussed repeatedly above, her purported text harassment claim is without merit and is time-barred. Any other out of whole cloth claim is similarly without merit. In light of these facts, I think you and your company should take a stand.

Finally, when someone is bidding against herself, why step in and stop her? The way she and her attorney are handling negotiations -- $250K to $50K -- they will soon offer to pay you money! Seriously, call their bluff and make them show you their hand.