Pretext Evidence May Support Retaliation Claim

Tenth Circuit Court of Appeals ruled that pretext evidence may be considered as the basis for a retaliation claim. Bertsch v. Overstock.com (10th Cir. 2012).

Bertsch, a female media department employee, started working next to co-worker Dustin Latimer in 2002. Soon thereafter, she complained that he watched sexually explicit videos on his work computer, put up a poster of scantily clad women in his cubicle, and made sexually offensive remarks on a regular basis. Overstock.com reprimanded Latimer, instructed him to remove the poster, and warned him to refrain from inappropriate comments. Overstock.com also disciplined Bertsch, however, stating that she contributed to the hostile work environment, and told her she needed to more effectively organize her work and time. Bertsch was reassigned to the warehouse shortly thereafter, which she considered to be a demotion, and fired in 2004 based on repeated performance complaints by other personnel. She sued claiming both sexual harassment and retaliation.

The Tenth Circuit ruled that Overstock.com’s response to Bertsch’s complaint was sufficient to avoid liability for sexual harassment, although the court did note that Overstock.com did not follow up to ensure that Latimer had ceased his offensive remarks.

However, the court said that Bertsch may have a case for retaliation, as the company’s reasons for transferring and then terminating her, her alleged poor work performance, may have been pre-textual, with the real reason being her complaint about Latimer’s behavior. The court held that a jury could consider evidence of pretext as the basis for a retaliation claim.  

Employers considering taking an adverse employment action against an employee who has made a complaint should be prepared for the possibility of a retaliation claim. To ward off such claims, employers should ensure that the action is consistent with the organization’s policies and practices and that the reasons behind it are well documented. 

The Tenth Ciruit has jurisdiction over Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.