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Post-Employment Comments Not Evidence of Harassment

    Client Alerts
  • December 09, 2011

When a problem employee finally quits, the employer's first reaction may be "Don't let the door hit you on the way out." Can such post-employment comments come back to bite the employer when faced with harassment or discrimination claims? Last month, the Seventh Circuit Court of Appeals refused to allow the employer's alleged comments to an already terminated employee to be used as evidence of discriminatory treatment during employment.

In Overly v. KeyBank Nat'l Ass'n., the plaintiff was a financial advisor who alleged that her supervisor made a number of condescending and sexist remarks to her during her employment, such as calling her "cutie," and telling her that she had a "pretty face." After a series of work disputes with the supervisor, she resigned. After giving her supervisor her letter of resignation, the plaintiff alleged that he grabbed her arm to push her out of his office, and yelled "good riddance bitch." She sued under Title VII, alleging sexual harassment, discrimination and retaliation for her earlier complaints about her treatment.

The Seventh Circuit quickly concluded that the alleged remarks made to the plaintiff during her employment did not rise to the level of a hostile and offensive working environment under Title VII. While the claimed post-resignation behavior was more severe and degrading in nature, there was no evidence linking these comments to the earlier alleged sexist treatment. The bank was able to articulate legitimate business reasons for adverse action taken against the plaintiff during her employment. The court also noted that the plaintiff never was able to demonstrate that her treatment, pre- or post-resignation was motivated by her gender.

Of course, employers should not encourage or tolerate a supervisor venting his or her frustrations on a former employee. Such conduct could result in assault, battery or emotional distress claims against the supervisor involved, and against an employer for negligent supervision. In general, however, this kind of conduct does not directly demonstrate discriminatory conduct during the time the employee worked for the company.