Was that Wrong? Termination of Nurse for Workplace Sex with Doctor/Supervisor did not Violate Title VII

Workplace sexual relationships—and their aftermath—often give rise to a veritable hornet’s nest of employment law issues. But sometimes, as the Sixth Circuit recently held, termination of employees based upon the discovery of a consensual but inappropriate sexual relationship gone bad does not provide a basis for Title VII retaliation or hostile work environment claims. Stevens v. Saint Elizabeth Medical Ctr., Inc., No. 12-5243, 2013 WL 4564525 (6th Cir. Aug. 29, 2013). For fans of Seinfeld, this means the “Costanza defense” did not work here.

Background

Caroline Stevens was a nurse employed by Physician Associates, LLC and Patient First Physicians Group, and was also a personal assistant to a doctor, who was the CEO of Patient First—which was later acquired by Saint Elizabeth’s Medical Center. For several years while they worked together, Stevens and the doctor were engaged in a consensual romantic and sexual relationship, despite the fact that the doctor was married. Stevens eventually ended the relationship after the doctor refused to leave his wife.

Stevens thereafter filed a complaint with the hospital alleging that she was receiving various pressures to pursue another position—despite her desire to continue working with the doctor. The investigation of Stevens’ complaint turned up not just her relationship with the doctor, but that the two repeatedly engaged in sexual adventures at the office. In light of that discovery, both were then given the option of resigning or being terminated. The doctor resigned; Stevens was terminated. Stevens subsequently filed suit against the doctor, Saint Elizabeth’s, Physician Associates, and Patient First, bringing claims of sexual harassment under Title VII and Kentucky’s anti-discrimination laws, retaliatory discharge, and fraud. The district court granted summary judgment in favor of  the doctor and the other defendants. On appeal, a three-judge panel of the Sixth Circuit unanimously affirmed.

Analysis

The Sixth Circuit first rejected Stevens’ claim that the pressure on her to take another position gave rise to a hostile work environment claim. The court explained that Stevens “failed to establish that [the doctor’s] actions created a work environment that a reasonable person would find objectively hostile.” Indeed, although the doctor’s “texts of affection and the physical contact described [by Stevens] may have been unwanted or unsolicited and were clearly inappropriate,the working environment was not permeated with discriminatory intimidation or ridicule, nor was it physically threatening such that it would have unreasonably interfered with Stevens’ work performance.” And, perhaps most importantly, “it is questionable whether Stevens herself viewed these actions as severe and pervasive since the main objective expressed in her letter was to continue working with [the doctor].” (emphasis added).

Turning to Stevens’ retaliation claims, the Sixth Circuit held that they necessarily failed as to the doctor because “legitimate non-discriminatory reasons were offered by the defendants for Stevens’ termination,” to wit, “her in-office sex with [the doctor] and the ongoing office disruption resulting from the relationship.” Moreover, the court observed that “[t]here is no dispute that [the doctor], who was allegedly responsible for sexually harassing Stevens, did not fire her,” and “the lack of pretext is also illustrated by the fact that [the doctor] had no control over Stevens’ discharge”; indeed, “he suffered the same fate as Stevens, and did so at an earlier point in time.” Thus, although Stevens may have engaged in protected activity in a letter she sent to the doctor, the doctor could not himself be liable for retaliation.

As for whether the remaining defendants retaliated against Stevens when they fired her, the Sixth Circuit held that she never engaged in the kind of protected activity vis-à-vis those defendants that could give rise to a retaliation claim. Specifically, her claim against the other defendants was based upon a complaint made to site manager Gary Brown, in which she “expressed concern for her ‘job future.’” But, as the court concluded, “[t]his language does not express any concern about sexual harassment; in fact, the natural inference evidenced by the facts and Stevens’ statements during that time frame is a fear of reduced hours or concern about job stability as the merger with St. Elizabeth moved forward.”

Conclusion

The Stevens case demonstrates how an employer can avoid Title VII liability by treating the two parties in an inappropriate consensual sexual relationship in a similar manner.