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BLOG / 10.23.19 /Jack Malley

Decision in Favor of Nike Highlights Factors that Defeat Retaliation Claims

Although the termination of an employee after he/she has complained to the employer about discrimination is often prohibitively risky, there are common factual scenarios that diminish that risk. Among these scenarios are a clear record of poor performance established prior to an employee’s discrimination complaint and a termination by a manager who is unaware of the employee’s complaint. The Third Circuit highlighted these scenarios in its October 11, 2019 decision in Jessica Harrison-Harper v. Nike Inc., d/b/a Converse, Inc., wherein the Court dismissed a retaliation claim against Converse, a Nike subsidiary.

The plaintiff employee was Jessica Harrison-Harper, a Converse store manager. In late September/early October 2015, Harrison-Harper’s supervisor, Josh Sanders, received several complaints about her. He investigated the complaints and identified four incidents that were of great concern to him:

1. a customer complaint that Harrison-Harper refused to accept the return of sneakers in violation of company policy;
2. complaints from store employees that Harrison-Harper had given purchase discounts to distant relatives in violation of company policy that only allowed such discounts to immediate family members;
3. Harper-Harrison’s decision to rehire an employee who was previously fired for calling another employee a “bitch”; and
4. Harrison-Harper’s failure to maintain time and attendance logs for store employees

On October 7, 2015, Harrison-Harper notified Sanders that a sales associate, Jessica Lepera, had been talking to other employees about Harrison-Harper in a sexually suggestive way. In other words, Harrison-Harper accused Lepera of sexual harassment. On October 28, 2015, Harrison-Harper was terminated. Sanders recommended the termination and three other Nike managers approved it.

Harrison-Harper commenced a lawsuit against Nike. She alleged a Title VII retaliation claim on the ground that Nike terminated her in response to, and as a punishment for, her allegation of sexual harassment by Lepera. Nike filed a motion for summary judgment seeking to dismiss the claim. Nike contended that Harrison-Harper had failed to establish a causal connection between her sexual harassment claim against Lapera and her termination.

The Third Circuit dismissed the claim for two reasons. First, Sanders received multiple complaints regarding Harrison-Harper’s work and leadership before she reported the alleged harassment. Second, four employees contributed to the decision-making process that resulted in Harrison-Harper’s termination. But only one of them – Sanders – had any knowledge of her harassment claim.

Employers should take note of this decision, and especially remember that a well-documented record of bad performance prior to the protected activity is the best defense to a retaliation claim.