Sending Sexual Text Messages to a Co-Worker

[arrowlauncherdj]

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?

[LawResearcherMissy]

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.

[ESteele]

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. ; - )

[arrowlauncherdj]

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.

[ESteele]

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.

[cyjeff]

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!

[arrowlauncherdj]

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.

[Law Firm Business Manager]

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

[arrowlauncherdj]

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?

[ESteele]

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.