no-camera-allowed-mdThis is one of those pro-employer cases that just doesn’t make sense to me, even though I’m a die-hard management-side lawyer. It frankly strikes me as a case of punishing the victim. To explain:

In Furcron v. Mail Centers Plus, LLC, the employer provided facilities and administrative support to other businesses, including the Coca-Cola Company. A male employee with Asperger’s syndrome (which can cause awkward social mannerisms) was transferred to a mailroom (following some awkward social interactions with a female employee in his prior assignment). According to a female mailroom employee, after his transfer, the male employee frequently entered her work area and invaded her personal space. He stared at her and, as witnessed by another employee, attempted to look down the female employee’s shirt and at her underwear when she bent over. But even worse, as witnessed by yet another employee, he frequently exhibited an erect penis while staring at the female employee and would deliberately bump and rub his erection against her!!!

The female employee asked the male employee to stop his behavior, without success. She then complained (several times) to her (male) manager, who, according to the female employee, dismissed her complaints. Three days after the male employee’s transfer to the mailroom, the female employee took a picture of the male employee from the neck down to prove that he “exhibited an erection in the workplace.” She showed the photograph to her manager, who allegedly laughed in response. She then asked to file a formal complaint with Human Resources, and the manager notified HR and upper management. The female employee also showed the photograph to some female co-workers.

The following day, the female met with two different upper-level managers, including the Senior Manager of Operations, to discuss the photo and her concerns and, according to her, both managers laughed. She then emailed HR and two other managers, stating that she feared for her safety and that the male employee’s constant erection made her uncomfortable. She was then directed by her manager not to show the photograph to anyone.

There was another meeting with the Senior Manager of Operations and the Director of Human Resources, during which the female employee turned over the photograph of the male employee with the erection. At the end of the meeting, she was suspended – according to the employer, because she took “an inappropriate photograph” and had showed it around the workplace!!! And then she was subsequently fired for “Taking sexually suggestive pictures of a male associate’s private area without his permission or knowledge. Stored them in her camera and displayed the picture to other associates…”  Wait – she took a photograph of inappropriate behavior directed towards her by a male employee – but she gets fired because of it? For violating the company’s harassment policy? What?!!!

But it gets worse! The female employee sued her employer for sexual harassment and retaliation, claiming that her termination was based on her complaint about the harassment. The district court threw out the statement of one of her supporting witnesses, and then found that the female employee had failed to provide sufficient evidence that the harassment was severe or pervasive enough to create a hostile environment, or even that it was based on her sex. It also threw out her retaliation claim, finding that she did not actually complain of sexual harassment and that the employer’s reason for terminating her – the violation of its harassment policy – was legitimate and not a pretext for retaliation!

On appeal, the U.S. Court of Appeals for the 11th Circuit reversed the district court’s finding that no hostile environment existed – that there was evidence of a sexually hostile work environment. (Whew!) But wait! The 11th Circuit went on to uphold the district court’s dismissal of the retaliation claim!!! Although the 11th Circuit determined that the female employee had, in fact, complained of sexual harassment, it agreed with the district court that the employer’s termination of the employee for violating its harassment policy was a legitimate business reason!!!

Maybe that is a legally defensible reason from a technical standpoint. But really, I can certainly understand her taking the picture of the male employee’s erection to prove that he was harassing her. And I can certainly understand her showing the pictures to others, to find support, particularly if (as she claims) her managers were so dismissive of her concerns and her “proof.” But for the employer to then discipline her for sexual harassment? Of her harasser?