A Tulsa federal court recently dismissed a probation officer’s claims for gender discrimination and retaliation because the allegations in her lawsuit were not specific enough to proceed. Daree New worked for the Tulsa Juvenile Bureau. In the course of an internal investigation, New reported that coworker Josh Hogan was having a sexual relationship with a subordinate employee. Somehow, New was revealed as a witness in the (supposedly confidential) investigation.

After the investigation ended, Hogan was promoted to probation supervisor. He began looking for reasons to discipline New based on previous conduct, allegedly in retaliation for her reporting his sexual behavior to the investigator. New was disciplined and fired shortly thereafter. She filed a lawsuit. For her gender discrimination claim, New alleged she was treated differently than “other employees.” In particular, New was required to get approval from a supervisor before she was permitted to use flex time, but male employees could simply sign out and leave the office after they requested flex time.

The Tulsa federal district court dismissed her claim for gender discrimination. New’s allegations were focused on supervisors treating her differently after she participated in the internal investigation and reported Hogan’s sexual relationship with a subordinate. But those allegations support a claim for retaliation rather than gender discrimination. The court explained that New’s complaints about the use of flex time by “other employees” reasonably included both male and female coworkers, which did not provide any indication that she was denied the use of flex time because of her gender.

The court also dismissed New’s retaliation claim. At a minimum, a retaliation claim requires New to show that she engaged in “protected activity” under the statute. Protected activity comes in one of two ways: (i) participation in an investigation, proceeding, or hearing under Title VII; or (ii) opposition to any practice the employee reasonably believes is unlawful under Title VII. There was no dispute New reported to an internal investigator that Hogan and a subordinate employee were engaging in “inappropriate sexual relations.”

The problem with her retaliation claim was twofold. First, the law does not provide protection for New’s participation in an internal investigation by her employer; it applies only when an employee provides information as part of a formal investigation by the EEOC or otherwise participates in some legal proceeding. Second, New did not describe how Hogan’s relationship was inappropriate and there is nothing inherently unlawful about “a consensual sexual relationship.” In other words, New might not have thought it was appropriate in the workplace, but the relationship between the other two employees was consensual. Even if it was a policy violation, it was not illegal. By extension, New’s report to the investigator about that relationship was not protected activity. As the court noted, “Title VII is designed to prevent workplace discrimination [or harassment],” not what New apparently viewed as “socially unacceptable behavior in general.”

By Rebecca D. Bullard, rbullard@dsda.com