U.S. District Court Denies Summary Judgment

In Lavorgna v. Potter, W.D. Pa., No. 05-1610 (April 18, 2007), the Chief District Judge denied the government's motion for summary judgment to dismiss a Civil Rights Act Title VII allegation that a 14-day suspension was unlawfully motivated by the employee's gender.

The plaintiff was a male U.S. Postal Service letter carrier who was issued a 14-day suspension based upon the findings of an investigation into a female letter carrier's accusation of sexual harassment. The female letter carrier accused the plaintiff of making a sexual gesture and of laughing at her. Notably, the male supervisor conducting the investigation had been previously demoted for sexual harassment and had multiple complaints against him lodged by the female letter carrier.

In making his investigative findings, the supervisor relied upon the statements of two witnesses to support the allegation that plaintiff had confessed to making a sexual gesture toward the female letter carrier. Those two witnesses later stated that the supervisor mischaracterized their statements. Also, the supervisor relied upon the female letter carrier's statement that the plaintiff had laughed at her. However, the supervisor did not interview a coworker who supported the plaintiff's representation that he was not laughing at the female letter carrier. Moreover, the plaintiff submitted evidence demonstrating that the female letter carrier may have been motivated to fabricate her accusation by her belief that the plaintiff was treated more favorably than she.

The USPS argued that the judge should grant its motion for summary judgment on the plaintiff's discrimination claim because the plaintiff failed to satisfy his prima facie evidentiary burden and because he would not be able to demonstrate that the government's reliance on the sexual harassment investigative findings was pretext for discrimination. The government argued that, in order to be a comparator, the female letter carrier would have had to have been accused of or disciplined for sexual harassment, which she was not. Moreover, the government argued that even if the plaintiff met his prima facie evidence burden, the government would be able to offer a legitimate, nondiscriminatory reason for suspending him - its finding that the plaintiff engaged in sexual harassment.

The district court judge rejected both of the government's arguments based upon several key findings. The judge found that the supervisor's reliance upon a tainted investigation of sexual harassment to support an adverse action could itself be viewed as disparate treatment against plaintiff based upon his gender. More significantly, the court decided that the government "should not be able to benefit from (if a reasonable factfinder concludes that it has so acted) imposing a knowingly unwarranted suspension and then using that suspension as a means of avoiding a claim of gender discrimination." Additionally, the judge questioned the government's allegedly legitimate, nondiscriminatory reason for the suspension since the suspension was based upon a faulty investigation. The case was scheduled for a settlement conference.

The decision can be more broadly read for the principles that an employer cannot invalidate a claim of discrimination by relying upon a tainted investigation or by taking an unwarranted disciplinary action against an employee. Perhaps more important is the complementary principle that it is crucial for employees to thoroughly challenge unjustified actions taken against them by an employer. Without employees participating in the enforcement of their rights, the intent of Title VII will undoubtedly be frustrated and the employee protections will certainly be diminished.

This article also appears in FEDweek ( www.fedweek.com), a weekly newsletter for federal employees.