Retaliation Shown by Investigation Mistakes

A recent case demonstrates the risk of not investigating complaints prior to taking adverse employment action and the pitfalls of mixing the roles of investigator and decision-maker. McInerney v. United Airlines (10th Cir. 2011).

Jennifer McInerney, a ramp supervisor for United Airlines, took FMLA leave for pregnancy-related illness and later for her son who was born with serious medical problems. When her FMLA leave was exhausted, she requested an extended unpaid leave of absence, which her boss, Kevin Mortimer, denied.

McInerney called HR generalist Jeanne Nelli and said that she felt Mortimer denied her leave “because I’m a woman on the ramp and I just had a disabled child.” She said Mortimer also froze her out of the other positions for which she had applied. Nelli supported the leave’s denial without investigating McInerney’s discrimination claim. United notified McInerney that she must return to work after exhausting her paid time off and considered her to have resigned when she did not.

In McInerney’s suit for gender discrimination and retaliation, the Tenth Circuit Court of Appeals court found these factors suggested a retaliatory motive: United never investigated McInerney’s discrimination claim (or a similar complaint by another female ramp supervisor), and Nelli played a conflicting role in determining not to investigate and, instead, terminate her employment. The court said, “[HR generalist] also admitted that she was ‘wearing two hats,’ in that she terminated McInerney at the same time she was supposed to be investigating McInerney’s complaint… [HR generalist] was the United employee charged with the responsibility of investigating McInerney’s discrimination complaint, and she was also the person who decided to terminate McInerney’s employment before the complaint was investigated.Further, [HR generalist] made this decision with the knowledge that McInerney’s discrimination complaint was intertwined with whether United would make further allowances to permit her continued employment with United. Even with this knowledge … [HR generalist] ‘deemed’ McInerney to have resigned without two weeks’ notice.”