Employer Loses at Appellate Court because its EEOC Position Statement and Summary Judgment were Inconsistent

In November a Federal Appellate Court reversed a lower court’s decision granting summary judgment in favor of the employer in a sexual harassment retaliation claim. The Appellate Court’s decision to reverse was based primarily on the inconsistent story presented by the employer and its key witnesses. Because of the shifting timeline of key events, the Appellate Court concluded that a reasonable jury could infer that the given “legitimate business reason” for the plaintiff’s termination was in fact contrived.


Kelley Donley sued her former employer, Stryker Sales Corporation, for retaliation for filing an internal complaint against a manager for sexually harassing another employee. After receiving the complaint, the employer conducted an investigation and terminated that manager.

The employer then opened a separate investigation into Ms. Donley shortly after the manager was terminated claiming that she took inappropriate pictures of a CEO of one of the employer’s vendors. After completing this investigation, the employer terminated her employment. Mrs. Donley argued she could make a claim for retaliation because (1) the timing of her termination was close to the time she made the complaint; and (2) that if the employer intended to discipline her for taking the pictures, it should have done so when it knew about them – not after she made an internal complaint. The lower court disagreed with Ms. Donley and held that there was not a sufficient causal link between the intent to terminate and her internal complaint. As a result, it entered summary judgment in favor of the employer.

The Seventh Circuit Reversed

After reviewing the record, the Seventh Circuit reversed the lower court’s decision. The primary factual dispute was when the decision makers became aware of the pictures that Ms. Donley took and led to her termination. She alleged that her employer knew of the pictures the same night that she took the pictures and that her supervisor asked her to remove the pictures from her phone. There was no further discussion regarding the pictures.

When Ms. Donley filed her charge at the EEOC, the employer agreed that Ms. Donley’s supervisor had seen the photographs the night she took them. However, once the lawsuit was filed with the trial court, her supervisor denied having seen the photographs until the investigation into Ms. Donley commenced. The Seventh Circuit concluded that the employer’s inconsistent statements created a reasonable dispute of fact, such that a jury could conclude that terminating Ms. Donley for taking these pictures was intended to cover up its real reason – because she made an internal complaint of sexual harassment.

The Court concluded that if management knew about these pictures and intended to discipline her, the appropriate time to do so would have been when it first learned of the pictures – not six weeks later and after she filed her internal complaint.


The Court’s decision to reverse highlights the importance of position statements made by the employer to the EEOC in response to charges filed by employees (particularly now that position statements are routinely shared with the employee). It also demonstrates that when the decision to terminate an employee is made it is important that it be documented and discussed thoroughly with employment counsel. In so doing, the employer will develop the factual and legitimate basis for any termination and avoid any inferences that are beneficial to an employee.

If you have any questions regarding employment issues, please contact Walker R. Lawrence, or any of our lawyers in our employment law practice at Levin Ginsburg at 312-368-0100.