Reporting Sex in the Supply Closet Not Protected Activity – COTW #51

We have another bizarre fact pattern from the world of employment law in the latest employment law Case of the Week. A grounds worker was making his rounds, and collecting garbage. Of course, you can’t collect garbage without garbage bags, so he went to the supply closet… but it was locked. No problem, he had a key. So, he just unlocked the door and opened… oh dear… he “found the housekeeping supervisor and one of the housekeeping workers engaged in sexual activity.” That's enough to ruin your workday.

He reported the “incident” to the Facility Manager, but nobody ever followed up with him. There was never an investigation, and the culprits were never disciplined. So, the employee reported what he thought was a mishandling of the situation to human resources. A few months later, the employee was asked for his driver's license, which proved problematic. He was terminated for falsifying his application and not having a valid driver’s license. And, as is often the case in Cases of the Week, the “employee” became the “plaintiff.” Here, we have a retaliation claim. The plaintiff charged that he had been retaliated against for reporting the sex acts.

To state a claim for retaliation, a plaintiff must have “a reasonable, good-faith belief that the underlying conduct that [he] opposed violated Title VII.” The Court found that the employee witnessed an “isolated incident,” not pervasive sexual harassment. He “stumbled upon two persons engaged in sexual activity, which was not directed at him or his status as a man.” So, the Court held that “no reasonable person could believe that the incident opposed by Plaintiff constituted a violation of Title VII.” Retaliation for reporting two people having sex in the supply closet claim dismissed.

Citation: Zimpfer v. Aramark Mgmt. Servs., 2011 WL 2533021 (D. Utah 2011).

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.