Sending Sexual Text Messages to a Co-Worker

My question involves labor and employment law for the state of: Alabama
I had sent some texts to a fellow employee involving sexual comments. I stopped of my own accord despite her never asking me to stop about 1 month ago because I caught a conscience. I even sent a text about 2 months ago that asked the question, are these texts bothersome or offending you. She said no with a smiley face. The worst text I can think of was one inviting her to have an affair. She never said stop or that she was offended, and in fact would make a comment on her own every now and then. Of course I did not save any of these texts. She saved mine, the incriminating ones.

Last week she went to the boss and showed him some texts I sent. He apologized profusely, called me and told me to stop even though I already had on my own, and the next work day, I went to her and apologized profusely. I garanteed that there would never be anything off the straight and narrow from me ever again with anyone, not just her. No jokes, anything. I realize I can no longer tolerate any conduct even if in joke with any other employees. I begged her forgiveness and assured her no animosity or work place discrimination would ever occur.

Her husband wants her to file a claim, even though she initially said she was "ok" with how it was handled, and now he wants her to quit, so she put in her 2 wk notice.

Help please? Can I ask for transcripts of all texts to me from my cell company to help my case as I deleted them?

If she files a claim with the EEOC, it will be against your employer, not you personally. All the EEOC will do is oblige your employer to make you stop sexting her, and since you've stopped, your employer is already in compliance.

Her quitting is just going to weaken her case. Her husband is giving her very bad advice, as she will find out at some point.

If she files a claim with the EEOC and your employer tells you about it, it probably wouldn't hurt if you obtained the described transcripts at that time.

Her husband is giveing her very bad advice.

If she files a claim with the EEOC it will be against your employer, not you. All the EEOC will want to know is if the sexting has stopped, and when you and your employer show that it has not only stopped, it stopped before she filed her claim, the matter will be dropped.

The quitting thing is just drama queen behaviour and won't have any bearing on the outcome of an EEOC case.

If your employer is investigated by the EEOC, that would be a good time to get those transcripts.

Meanwhile, don't have anything to do with her anymore, whatever you say or do may end up being used against you.

Last question first: you can submit a request to your cell phone carrier. Based on what appears in the news, text messages can be retrieved long after their deletion, e.g., ask former Detroit Mayor Kwame Kilpatrick. If a lawsuit actually ensues, you and/or your employer may have to serve the carrier with a subpoena in order to compel production of the complete text messages.

With that said, I seriously doubt a lawsuit will ever happen. If the facts are as you recount them, she tolerated, if not enjoyed, your digital sexual banter. She would have a hard time establishing your comments were unwelcome. Your coworker would have even a more difficult time establishing that the sexual comments continued after she complained to management. According to you, you discontinued the texting prior to her lodging a complaint to management.

To establish a case of co-worker sexual harassment, she would have to establish at a minimum (1) the sexual comments were unwelcome and (2) the comments continued after she notified management. If your version of event is accurate, she cannot establish either fundamental prong.

One last thing: you may want to have a personal “reality check.” There appears to be a real disconnect here. You essentially maintain you were engaged in consensual flirting with a co-worker (including a proposition for an affair). Yet, your co-worker then “inexplicably” alleges harassment. Moreover, you “deleted” her compromising messages while she saved yours. This account suggests you were either acting like an over-stimulated teenager or engaging in less than innocent conduct. In either case, it does not reflect well on you. To your credit, you express some contrition here. Nonetheless, even accepting arguendo your side of the story, I would humbly and respectfully suggest you still need to “own” more of this kerfuffle.

While you will likely dodge a lawsuit here, you definitely do not want to flirt (in person or digitally) with anyone in the future who does not unmistakably respond in kind to your overtures. Do not equate silence with being receptive.

Thanks for your response.

I did delete the messages as I am married, and of course wanted no one to find out what was written at home. It was foolish I know, but that is the reason they were deleted. As far as your other comments, yeah, I was acting like a stupid hormonal teenager, and I should have known better. I am one of these guys who has always played by the rules and been above the fray, and I screwed up royally.

I have learned a lesson, trust me. I no longer will even be drawn into an off-color joke at work, much less anything of this nature again. As far as owning more of this situation... I own it all as I should have known better as an adult. I should always be professional.

Again, thank you for your response. Please if anyone else has anything to contribute, please do so.

Even people who normally travel on the high road have had experiences on the low! Fortunately, this situation did not devolve further into costing you your marriage or your job.

No one is perfect. Unfortunately, these types of mistakes can have lasting consequences. Again, you dodged a bullet. All it has apparently "cost" you is (1) your friendship with your coworker and (2) your having to have difficult discussions with your boss. Furthermore, this type of “friend” you do not need in your life for a multiple of reasons.

Last bit of unsolicited advice: you may want to redouble your efforts to reconnect with your wife. At one time, you loved her enough to marry her. In all likelihood, you still love her. (Otherwise, you probably would not care about her discovering your "near" affair.) I am sure she has had your back in the past. The fact you have expressed regret here suggests that you can make it work with her. I hope all the best for both of you!

Thank you ESteele. And yes, I am redoubling my commitment to her. Interestingly enough, and though it may be hard to believe for most, I had made that decision before all this surfaced. Most folks only make a change after they are caught. Real change takes much more than a couple of weeks and is a process, but the first steps in the right direction are not less important than the final ones.

Well, the situation has taken a turn for the worse. I got a certified letter last Thursday that stated she had seen a lawyer to represent her interests in pursuit of legal action against me and the business. Her letter stated falsly that I had continued to harass her after management reprimanded me. I have the cell phone records that show I stopped all communication with her on June 29, no other text were sent, and as I stated her complaint was on July 14th. The records also show that our texts were nearly 50/50 in number back and forth for the last two months we texted. She had told management that she never text me back during her initial complaint on July 14th.

After apologies to her from myself and management, she still threatened charges and that she wanted to resign. Management talked her into taking 2 wks off with pay to think about things and discuss options with her family. She came back to work and all seemed fine for about a week until she got her paycheck, which was for the her average work week (about 35hrs), not a full 40hrs. She got angry and left that day at lunch. She had a text conversation with the office lead and specifically said she didnt leave because of me, and asked the office lead to tell me this. I asked the office lead to text her back and say if she needed a letter of reference, I would give her a good one as I maintained she was a good employee, capable of many diverse tasks. I heard no more until last week as stated above.

She will have no witnesses that say I did any physical act nor were any new text sent as I stated above... Am I still in a lot of trouble here. She still has the text saved that I sent her, but lied and said she never sent any to me when the records printed straight from the bill show she did.

Help!

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Help!

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Time to lawyer up, Bub. She's fixin' to sue, and it's going to get UGLY. You say you offered to write her a letter of reference. If you served in a supervisory capacity over her, she can plausibly argue that she was afraid that if she didn't play along, she'd lose her job.

It's also time to do a couple other things:

1) Sit down with your wife and tell her EVERYTHING. Don't try to make it out to be your co-worker's fault, either. You're a grown adult, and you should understand that sexual behavior at work is both inappropriate AND a legal liability for yourself AND your employer.

2) Get yourself into counseling. People who engage in sexual behavior at work are exhibiting extremely poor impulse control.

3) Start looking for a new job, because if she pursues action against your employer, they will undoubtedly hang you out to dry.

The business has retained legal services in this matter. I have typed up a statement as complete as possible with regard to all the happenings. On a side note, I am a doctor but have no authority to hire or fire anyone. I may be a supervisor, but only in the sense that I am lead in running the clinic on my days, no authority other than that. I am considered a salaried employee by my contract. Also, in the past I have asked her to stay on twice when she thought about quitting long before any of this went on. She thought about quitting because she was asked to do a different job due to other changes in staff. This was a year before any text or any other unprofessional conduct occurred. Also, no quid pro quo was ever discussed on any text of any sort.

Does any of this help my case?

None of it is even remotely relevant to your case.

Well I am a legal dummy here... is there anything I should be doing or can do to help myself here.. .does it matter at all that she lied to management about sending me text or that she is also now lying about the harassment continuing after the complaint and reprimand on my part? Do the cell records help me showing that she lied as concrete proof?

Straws: You're grasping at them.

It's nice that the business has retained counsel, but you need to do so as well. The business is not going to be looking out for your best interests.

Also, all the extraneous details? So irrelevant as to be from Mars. You're not understanding the gravity of the situation you have put yourself in, are you? Let me paint you a picture: You are tied hand and foot to lead weights, trapped on the ocean floor. And the ocean is BOILING.

Lawyer. Now.

Two points: One, I do not generally disagree with the sentiment of the earlier posters. However, I would strongly recommend you remain calm. Keep your powder dry.

The fact this woman wrote the letter herself is rather telling. If she met with an attorney who thought she had a viable sexual harassment claim, he or she would have likely written a demand letter to your employer or filed an administrative complaint with the EEOC or state or local Fair Employment Practice Agency (“FEP”). This did not occur. The “aggrieved” employee wrote the letter.

It appears that she is attempting to leverage this situation to her benefit. That is her right. However, as discussed below, I doubt any lawyer will ever file a sexual harassment complaint on her behalf in court.

Two, if what you have stated is accurate, then she does not have the basis for presenting a prima facie sexual harassment claim. As a fundamental matter, the purported harassment must be “unwelcome” in order to advance a sexual harassment complaint. While your coworker now presumably claims your text messages were unwelcome and asserts she did not text you back, the “records” from the phone company should establish, at a minimum, she did respond to your texts frequently during the period in question. (Do the records include the actual texts? Based on what happened to the former mayor of Detroit, it appears that phone companies have the technical ability to retrieve customers’ actual text messages. If you do not have transcripts of the actual texts, you and/or your counsel may need to look into this issue further.)

Additionally, the fact she has lied to management about responding to your text messages may matter to your employer. Since your employer has not terminated you already, management has apparently decided to stick with you (at least for the moment). Her apparent prevarication can only enhance your standing with the employer.

Her lying would also certainly matter to any prospective attorney evaluating her case and would also definitely matter to any court which could potentially evaluate her complaint. Again, the phone records conclusively establish that she was untruthful about sending text messages on her own volition. Moreover, the records suggest that she engaged in communication with you voluntarily.

As recommended above, it would prudent to consult with an attorney. I doubt, though, you will have to engage him or her for an extensive litigation battle here. In my estimation, the worst thing your would-be coworker/paramour will do here is file an administrative complaint with EEOC or a FEP. Based on your representations of the underlying events here, her potential complaint will almost surely die at the agency level.

In summary, you should not simply blow her off. Take prudent precautionary steps. But, do not fret. This entire situation will likely blow over on its own accord.

Take two aspirins and call us in the morning. ; - )

Thanks all for replying.

ESteele there is one thing that I need to clarify... she has consulted an attorney, he wrote the letter stating these things on her behalf. The letter from her attorney stated that she said I stopped briefly and restarted. That did not happen and there is absolutely no proof of that in any way. So in reality, either she is lying to her attorney who is writing this based on false pretense thinking it is legitimate; or he is just trying to scare my employer into paying something right away. The business insurance company has stated that this is covered to the tune of $10K and their attorneys have taken the case over from our business attorney.

As a side note, I produce about 65% of the business receipts, so it is in the business best interest to help me out here. Losing me is really not an option as the business would likely fold fast. I apparently am moping around a lot at work, and a coworker came to me unsolicited and told me today that the she and her husband are having severe financial problems, losing their house recently. That she lied to the office staff and me about her and her husband splitting up, apparently had something to do with their mortgage situation... making it look like they split up for some reason, may have to do with bankruptcy (??). Also, the coworker stated that she saw her openly flirt with me. So, I may have a witness on my behalf if it comes to that. The boss said the insurance company seems to think this will go away with minimal financial risk to me or the business, if any.

I am still going to put in a call to a lawyer friend of mine for advice and possible help if I hear any more. I am hopeful.

Thank you for clarifying. The fact a lawyer wrote her demand letter does not change the underlying deficiencies in her purported claim. Accordingly, I would still strongly recommend you remain calm and act prudently.

Your last post reminded me of two additional considerations here. First, in your earlier posts, you reported that your coworker contended you continued to text her after the date – sometime in June -- on which you claimed to have voluntarily discontinuing texting her. In on your recent posts, you report obtaining the cell phone records which apparently confirm, at a minimum, when the texts were sent and who sent the respective messages. These records should further establish that your female coworker was not telling the truth about when you stopped texting her.

To recap, she was apparently less than candid about (1) her sending messages to your and (2) your discontinuing the text communication. The cell phone records should make her prevarications unmistakably clear.

Second, if your coworker never complained to anyone in your employer’s management structure that these texts were unwelcome during the time the two of you communicated with each other (apparently during the late spring and/or early summer) and you discontinued texting her on your own weeks prior to her complaining to management in July, she cannot in all likelihood maintain a successful sexual harassment complaint against your employer.

In essence, she has alleged that your texts created a “hostile work environment,” a form of sexual harassment. As a general matter, to find an employer liable for hostile work environment harassment, the allegedly aggrieved employee must report the harassment to management to allow the company an opportunity to rectify the situation. If she does not lodge an internal complaint (or otherwise assure that management was aware of the harassment), then she cannot proceed to sue the employer for the hostile work environment.

In this instance, the objective evidence, i.e., the phone records, should establish that you did not text her after she complained to management. Under these circumstances, she cannot maintain a sexual harassment claim under Title VII against your employer.
On a related note, she could not conceivably sue you individually under Title VII because this federal law only applies to employers (with 15 or more employees), not to supervisors, coworkers or other individuals. Moreover, I do not think Alabama has a state anti-discrimination law of any stripe. As a result, she cannot look to state law as a possible basis for her to pursue individually.

As stated earlier, in order to be prudent, you should consult with an attorney directly to review the totality of the underlying circumstances here. However, you should not worry or overly concern yourself about this situation. While she may file an administrative complaint with the EEOC, said complaint will almost certainly perish at the agency level and never see the light of day in a courtroom.

I would also strongly recommend that you STOP talking about this case with coworkers.... stop discussing the persons involved in ANY manner.

Gossip being what it is, anything said WILL get back to everyone... so stop your discussions NOW!

Thanks cyjeff... I agree and have said to her, that we shouldnt discuss anything else. Anything else she wants to discuss to go to management with it in detail if she wishes.

Disregard - I had not seen the page 2 posts when I typed my comment.

Ok, an update... she is asking for $250,000 for "mental anguish" resulting from the texting. Our lawyer said he thinks it is extortion. He still hasnt given her lawyer the info we have about all the text she sent me... again both of us sent 70+ texts, nearly equal in number. She saved mine, I did not save hers. She cannot produce a message stating she was uncomfortable or wanted me to stop.

I instructed the lawyer to offer $10K, our liability limit and have the conversation with her lawyer about her text to me, our staff saying what they saw and didnt see, and if that didnt work, I would go to court with it. The boss says, he now understands what I have been saying, that we were set up. Still I was dumb enough to participate, but it was a set up no doubt. He said he'd be behind me if I wanted to tell her to go pound sand and let her go do what she wants with court and with EEOC.

What do you guys think?

I would tell her to go pound sand.

Based on what you have posted, the EEOC in all likelihood will issue a “no probable cause” determination in short order. Moreover, no lawyer will take this case to court because the purportedly ”aggrieved” employee cannot overcome the hurdle she never complained to anyone in management during the period in which she claims to have been harassed. This is black letter law as set forth by the Supreme Court.

If I were in your shoes, I would recommend paying the company lawyer potentially thousands of dollars in legal fees to have this case dismissed by the EEOC rather than pay her and her lawyer $10,000 or one dollar.

I hear ya ESteele. Our insurance company lawyer said that if it goes to EEOC it may get bogged down for a year or more before they render an answer, or act as mediator, etc... I just didnt want it to drag out that long. The latest lawyer letter said they were preparing to file with the EEOC per the time limitations on doing so were coming soon, though I dont know anything about deadlines and the EEOC. The insurance company is acting like they believe $25K would likely make it go away and said that in an email to us. I was like heck no... I'd fight to my last breath for that kind of money.

If we did the 10K, I'd end up paying about 3k out of pocket myself for legal expense... I want to do what you suggest and the boss kinda acts like that as well, saying if it were him, he'd take his chances, but it is me and my reputation on the line here. I will end up paying for it one way or another, as that is how a buy out works... which I am doing a sweat equity buy out right now. In other words, any money he puts out for me will have to come out of the buy in. I want to do this as painless as possible, but my instinct says hell no, and wanna fight. Heck even her sister came by the office the other day and told the boss the family thought she was doing wrong by us. I am frustrated.

Ask the company lawyer and/or the insurance counsel how the purportedly aggrieved employer could possibly overcome the “Farragher- Ellerth” reporting requirements when she undeniably did not complain to anyone in management about the alleged harassment. They will likely tell you she cannot. Consequently, why pay for a bogus claim which on its face the putative complainant cannot conceptually win?

The fact the case may linger at the EEOC should not present a problem. For the most part, the company’s lawyer has to file a response to her administrative charge of discrimination, attend mediation, and respond to the agency’s stock interrogatories and request for documents. That is pretty much it. He or she does not have to invest an inordinate number of hours to accomplish the foregoing. Whether the EEOC dismisses her complaint in two months or two years does not significantly alter the amount of time the company attorney has to expend here.

As stated above, she cannot overcome the Farragher-Ellerth hurdle. Her lawyer probably knows this. Apparently, the employee and counsel are banking company management and your counsel do not. (And, of course, she would have enormous difficulty overcoming the several other, previously discussed factual headwinds, e.g., her numerous text messages to you, working against her.)

Do you play poker or blackjack? They are bluffing! The employee and her lawyer are not holding any winning cards. They cannot possibly win this hand UNLESS you fold!

Do not pay her a single solitary shiny dime! You will likely regret it. If you do pay, they will in all probability laugh at you all the way to the bank! Do not let them laugh at you. Do not be frustrated.

In the immortal words of Al Davis, “Just win, baby!” Let them take their best shot. You have the winning hand IF you play it.

I like your style ESteele. I did talk to an lawyer buddy of mine this afternoon, and he said if he knew someone had sent that many text and asked him to represent her, he would not even take her case, much less take anything to court. He also felt that the EEOC would just as likely dismiss everything as issue any right to sue documents or other. He felt that management didnt even technically have to intervene due to me stopping on my own accord, though it was good that they did and it is on record.

He said the same thing you did with regard to settlement, and in fact laughed out loud at their demand, saying it was obvously a huge number to scare me into settling for something. I will sleep on it and likely change my mind tomorrow as I am leaning toward telling them to go pound sand as my boss and you put it earlier. It is to the point now where fear or worry are being overcome by a near overwhelming urge to fight it at every turn.

Thanks again for your input!

You are welcome. You lawyer friend appears spot on. Save your money! Call their bluff! Additionally, irrespective of what you decide, please keep us informed.

BTW, when did you send your last text? Based on your earlier postings, it appears you stopped texting her sometime in May. If this is correct, the 180 day limitations period on her filing a charge would appear to expire sometime in November.

The various limitations periods for Title VII and other anti-discrimination statutes are unduly complex. While she and her counsel will probably file before this deadline, it is entirely possible they could miss the deadline. In addition to all of the other considerations weighing against settling with her, you definitely want to count the days from the date of your last text.

It actually was June 29th, but she went to management July 15th, over 2 wks after I stopped. Thanks for the info.

Ok, new letter from her lawyer. Despite your advice ESteele, all parties on our side wanted to attempt an agreement, of $3k. Her lawyer says no and countered with $200k, saying her only alternatives were to terminate employment or continue to deal with my "advances" per his letter. Our lawyer pointed out the number of text she sent me, and he said they were only responses to me again, and lacking in substance. I personally think the huge volume and the fact that it is 50/50 on the number has him a bit worried even though I cannot produce the actual texts in written form... we still have the records showing text conversation and it wasnt one sided by any stretch. In fact several text, she would text me two or more at once before I would have a response. But he is playing tough in the letter about it.

He said he still hasnt filed with the EEOC as of yet but will shortly if her demands arent met basically. He also states I continued to send text again after I was reprimanded, which is flat out impossible as we have cell records showing that is bunk, again the June 29 last text and the July 15 reprimand, which is documented and in my personnel file. I dont know where he is getting that info as we have records well into August after she quit showing no further texts, and I even deleted her from my phone July 15th, so I am telling the truth there for sure.

I sent back to the boss and lawyer, as the boss said it was my call what I wanted to do... to let her file with the EEOC, I will negotiate no further at this point. The lawyer is betting on the fact that it may cause family problems with me, and actually put that in his last letter, so it is essentially blackmail. At this point, her demands are so absurd that I will take my chances with the EEOC.

Input...?

If you can conclusively establish that you did not text her or otherwise communicate with her in an untoward manner after she complained to management, then her potential case is dead in the water. The complainant cannot meet the minimum requirements set forth in the Faragher/Ellerth decisions to proceed.

Tell the complainant’s attorney to go pound sand! Pay your attorney to beat back her administrative charge. (If necessary, your counsel can ask the EEOC to subpoena the actual text messages – not the record of the transmissions – from the phone company.) Her complaint cannot overcome Faragher/Ellerth.

If your side chooses to negotiate further, then why not ask her attorney to produce proof (e.g., her phone records) that you continued to text her after she complained? The absence of records will confirm that no further text communication occurred after she complained. While her counsel could spin an alternative tale (e.g., you harassed her face-to-face after she complained), he may actually realize at that point his case has little or no chance of going forward since the objective evidence indicates no further possibly harassing conduct occurred after she lodged her internal complaint with management.

FWIW, I would not negotiate further with her attorney. Anyone who seriously believes his or her client’s case is arguably worth $250K in an initial settlement offer does not drop subsequently down the demand to $200K in response to a $3K counteroffer. This only tells me they would likely settle for something in the $15K range. If it were me, I would rather pay $15K to my attorney then give them a dime. They are not negotiating. They are grifting!

As stated earlier, at best her counsel is playing poker. Your side needs to make them show their cards.

Maybe playing poker but it will settle for 40-50K - just due to the cost of litigating it would be the same. We'll see, just a guess.

I agree, and so did our attorney on the amount they would 'likely' settle for. But it is not worth it to me to keep up this game. Thanks for your input again! I'll keep you posted on any new events. On a side note, I was almost tempted to tell them to make a counter offer just to see if we could push them to the deadline for the EEOC, but I doubt that would work as her lawyer seems to have done his homework on the 6 month limit. But to be honest, the mental anguish is not worth it on my end. If it takes forever at the EEOC I really dont care, the break would actually be refreshing.

if the EEOC issues a Dismissal and notice of rights letter, which to me seems the way it should go after what we submit to them with regard to timelines and phone records... what is the likelihood that they will file anyway on their own in fed court, and how much will the dismissal letter help me if that comes about??

There is no absolutely reason to settle for $15K, much less for $40K or more! Her case is frivolous!

There is no way the company attorney should legitimately charge $40K or more for a case which will not in all likelihood proceed beyond the EEOC. (Again, the complainant cannot overcome the Faragher/Ellerth card.) If your employer seeks to keep costs at a bare minimum, the company attorney should devote the largest portion of his or her time preparing a detailed response to her charge of discrimination. The drafting of the response should certainly take eight hours or less. Additional communication with EEOC staffers should involve four hours or less.

BTW, do not agree to mediation in this instance. This would needlessly involve another 6 to 8 hours of attorney time. If the complainant’s attorney wants to make a realistic settlement proposal, e.g., $10K, the attorneys for both sides can negotiate further over the phone and/or in writing. Such direct negotiations should involve a total of 4 or fewer hours.

Even assuming the company is paying its counsel $400/hour, he or she should be able to succeed in having this case “die on the vine” at the EEOC at a conservatively estimated cost of $6500 or less.

I was talking about the $15k, not the 40-50k for sure... that response was made while I was typing.

Anyway, if the EEOC issues the letter of Dismissal and NOtice of Rights... how powerful is that if they decide to push for a lawsuit within the 90 day period after that? and is a suit even likely... in other words is it likely her attorney would give up and tell her to pay up for what he has done thus far realizing he will likely get nothing.... as she is broke and has already lost a house per their financial troubles.

In all likelihood, the complainant’s counsel is handling her case on a contingency fee basis (and/or with an expectation of recovering part or all of the fees per an attorney’s fee petition). The complainant is not likely paying directly for her counsel.

When the EEOC issues the Notice of Right to Sue, her case will perish soon thereafter. Absent evidence which can help her overcome the Faragher/Ellerth obstacle, filing her case in court would be a fool’s errand. Accordingly, it is almost a 100% certainty her counsel will not take her case to court.

I fully expect that her counsel already realizes the foregoing. His settlement offers to date, though, suggest he does not think your employer understands the foregoing.

I was hoping they likely wouldnt issue a right to sue... I understood that meant the case had significant merit. I thought that if they did a Dismissal and notice of rights, that was essentially saying they can find no fault on employer's part. I understood that all the "talks" like mediation, consilliation, etc... were either after just reviewing the complaint and response or after investigation. And all that took place prior to a right to sue if they believed the case had significant evidence of wrongdoing on the employers part and mediation broke down.

In other words the Dissmissal and notice of rights letter is better for an employer than the right to sue letter.

Am I confused?

You are (understandably) confused. When the EEOC issues a Right to Sue Notice, the agency has essentially washed its hands of the matter. It issues a Right to Sue Notice either when the complainant requests such a Notice or when the agency determines the facts will not support the discrimination charge. In contrast, when the EEOC finds sufficient basis to support a discrimination charge, it issues a “Probable Cause” Finding.

You do not want to engage in mediation here because it is a waste of the company’s time and resources. The EEOC encourages voluntary mediation of every case soon after the filing of the charge of discrimination. In addition, after issuing probable cause findings, the agency urges the parties in such cases to engage in additional mediation. Under different circumstances, mediation could prove potentially beneficial for both sides. Those circumstances do not exist here.

At the end of the day, you do want the EEOC to issue a Right to Sue Notice. In this case, the Right to Sue Notice will start the 90 day clock to the last final day her case will figuratively breathe its last breath. While crazier things have been known to happen, neither she nor her current counsel will in all likelihood file a case based on the facts you have reported.

As mentioned above, the complainant here appears to face an insurmountable brick wall: the Faragher/Ellerth notice requirements. She and her lawyer cannot evidently get around this obstacle.

Ok, sounds good to me. I'll keep you posted. Thanks for the clarification.

OK, an update:

Now her lawyer is asking 100k... ridiculous, but true. They have now passed the 180 day mark for the text messages which was 12/29/11. Our lawyer is saying she will still allege other forms of harassment, verbal touching, etc... which btw never happened. It is a he said she said thing I know. Will the EEOC still even allow the text to be used now that it is past 180 days? In other words, is that evidence inadmissable now? I told the lawyer to let them try the EEOC. What do you think?

You want to steer away from the evidentiary term “inadmissible,” which has little or no application here.

With that said, your attorney is correct that if the alleged victim contends in an discrimination charge that you harassed her repeatedly in a similar fashion before and after the 180 day limitation period then all of the alleged harassment could be considered timely under Title VII under a “continuing violation” theory. However, in a case which originally centered on your exchange of “pre 180 day” naughty text messages, the alleged victim and her counsel run the risk any other purported “post 180 day” sexual harassment may be found too dissimilar, distinct and/or disparate in nature to qualify for treatment under a continuing violation theory.

Separately, as I recall your earlier posts, the victim did not complain to management concerning any such matters imagined out of whole cloth. She complained exclusively about the text messages. She cannot subsequently pursue a separate hostile environment claim unless she first provided management an opportunity to rectify the alleged situation first. Moreover, since neither any further texting nor any other possible form of sexual harassment took place after she complained to management, it does not appear possible she could advance a viable administrative harassment charge before the EEOC, much less a viable judicial complaint in court.

In summary, the fact that the victim’s texting harassment claims may now be time-barred only inures to your benefit. Accordingly, for all of the aforementioned reasons, I would still recommend neither you nor your employer pay the victim or her attorney one red cent!

Ok, I got a letter in email from the managing partner of the firm representing us scaring the crap outa me. He said that he is very sure even if the EEOC found no cause, and issued the right to sue letter, that her lawyer would surely file. He painted a picture of my text messages blown up on a big screen in public court, cross examination being very unpleasant, and the cost of such defense extremely high. Not to mention an unpredictable jury and the possibility of a plaintiff verdict, small or possibly large. In regard to the EEOC and the Stat of limitations... He felt that they would allege sort of a broadsweeping type of harassment, verbal, text, etc as well as wanton neglect of discipline in this situation... and that the EEOC would likely still hear her based on the 4 wks she spent employed after she made the complaint.

Also, I am not so sure of our office manuals and policies and how bombproof they are. The attorney said they might allege wanton neglect with regard to management's policies in other words. He stated that all suits have a 'worth' and no matter how good our defense is, there is enough unpredictability involved. He stated all this giving us another 'devils advocate' view as he stated in the email. This was enough to make me have knots in stomach again.

I really do not want to go to court over something like this.

To add to the last statement above... I had no contact with her in the workplace after unless in the company of another employee. To be specific of her claims after the text messages, she claimed that I exposed myself to her and touched her thigh near her genitals... both physically impossible as I was never unaccompanied. This was not a new policy regarding contact with her, but the hiring of a full time scribe ensured I was always in company.

The attornies know this but still insist that the claim in and of itself will be of note. I understand your post above, and hopefully under the Far-Ellerth deal, she will have no case with the EEOC. I am more concerned about the right to sue stuff after the EEOC though. I am pretty confident that the EEOC will rule in my "favor" or no cause.

In response, ask him how her counsel could conceivably overcome the Faragher-Ellerth obstacle. As stated earlier, Faragher-Ellerth remains the death knell for her case. Faragher-Ellerth is the primary reason her case will never see the light of day in a courtroom. While her case has numerous other flaws (e.g., statute of limitations), Faragher-Ellerth absolutely obliterates the prospect of her case ever proceeding to trial.

Don’t settle. Save your money!

Let me ask you this? How will it protect me from trial if the EEOC issues a right to sue? Will it be found lacking in some sort of pretrial setting? This is what I am curious about. I guess I am asking, is there like some grand jury like proceedings that would keep it out of court based on the timelines and lack of other evidence?