A Utah employee complained that one of her coworkers was biased against women and made harassing comments. The employer responded by disciplining both of them, but for different reasons. But the woman kept encountering on-the-job problems and was eventually fired. Was her termination justified?
What happened. "Beth" worked for Overstock.com at its Salt Lake City headquarters from November 2002 to May 2004. When she first complained about her coworker, each of them was sent a disciplinary memo, but other supervisors then chimed in that Beth herself was a difficult employee who didn’t get along with others. Thereafter, the record gets increasingly muddled—into a long “he said/she said” controversy between Beth and her managers that ended in her termination.
Some claimed she was a good performer with a problematic personality. She was then transferred to a different area of the company—perhaps in an effort to separate her from her troublesome coworker, but even that wasn’t clear. And, her new supervisor found that both her performance and her interpersonal transactions were poor. He eventually succeeded in firing her, but she sued, charging that she had always faced a gender-based hostile environment. Any discipline meted out after her first complaint, she alleged, was retaliatory.
A judge in federal district court ruled in favor of Overstock.com, and Beth appealed to the 10th Circuit, which covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.
What the court said. Appellate judges were bewildered by witnesses’ conflicting testimony and a record full of charges and countercharges that made it almost impossible to determine what had happened and why. Since Beth’s offending coworker had promptly been disciplined, judges rejected her claim of a hostile work environment; in fact, she had never complained about the coworker after that. But had Beth suffered retaliation by others after that?
The record was so muddled that judges couldn’t easily determine the answer. Her termination form listed such problems as "resistant, difficult, creates disharmony," and similar accusations—all of which she denied. So judges sent the retaliation claim back to district court for reconsideration; it will probably be sent to a jury. Bertsch v. Overstock.com, U.S. Court of Appeals for the 10th Circuit, No. 11-4128 (7/10/12).
Point to remember: Beth’s termination form commits sins that HR pros and managers should not commit: Rather than state facts about her behavior, it leveled judgmental comments about her personality—comments that were hard to verify and, thus, not good reasons for termination.