I hope everybody had a good Thanksgiving.

A federal judge just down the road from me ruled this week that a woman’s retaliation case should go to a jury, even though her sexual harassment case -- based on a co-worker in his underwear -- was properly dismissed.

In addition to providing some entertainment value, the case illustrates very well that a plaintiff can have a valid retaliation claim even if her underlying claim lacks merit.

The plaintiff was a female truck driver with a clean record who was in good standing with her employer. She had even resigned once and been rehired. 

One fine night, she drove to a company warehouse in Houston for legitimate business reasons. When she got there, a male coworker was there in nothing but his undies and penny loafers.*

*I like the detail about the precise type of shoes he was wearing. Undies and wingtips would have been a faux pas.

This undies story may not have been as crazy as it sounds. Drivers typically slept in their cabs at the warehouse, and the court says that the warehouse was “unpopulated,” so my guess is that this guy had stripped down to go to sleep and then had to get out of the truck for some reason, not thinking about the fact that he wasn’t decent or that anyone else would be there to see him.

Anyway, the plaintiff initially thought it was funny, and she FaceTimed a co-worker and showed the coworker what she’d seen, and they both laughed about it, and the plaintiff told the coworker not to tell anybody. Meanwhile, the man in his undies quickly got back into his cab and apologized to the plaintiff through his window.

Even though the coworker had been instructed not to tell, the coworker did tell, and the guy in his undies got a writeup. The plaintiff had an apparent change of heart, too, because when she returned from a vacation, she followed up with management to see where things stood with this guy.

About 10 days after that, the plaintiff got a talking-to about not following proper driver logging practices. No prob – she accepted the guidance and quit doing whatever it was she had been doing wrong. About a week after that, she got a talking-to about another issue. She was fired that same day.

(Was the guy in his underwear the CEO’s son-in-law?)

The plaintiff’s talkings-to were all, superficially at least, for legitimate reasons. Several had to do with the way the plaintiff logged her driving time, which has implications for the company’s compliance with U.S. Department of Transportation regulations.

In any event, she sued the employer for sexual harassment based on the "Underwear Incident," and also for retaliation.

U.S. District Court Judge Kenneth Bell, a Trump appointee, dismissed the sexual harassment claim about a year ago but not the retaliation claim. After the parties conducted discovery, the company filed a motion for summary judgment on the retaliation claim. In this week's decision (linked above), Judge Bell denied that motion, saying that the retaliation claim would have to go to a jury.

According to Judge Bell, the plaintiff bent the rules all the time, and the company had never said a word to her about it. But once she complained about the underwear guy, look out! She was counseled about one issue by the Safety Manager, and she complied with his instruction. A week later, the Safety Manager counseled her about something else. Judge Bell said she complied with that second counseling, too, but since she was fired the same day, I'm not sure how she had a chance.

The company introduced into evidence numerous violations on her part, but they all occurred (or became a concern) right after she reported the underwear guy. Most damningly -- at least, for summary judgment purposes -- the company admitted that it knew the plaintiff was doing things wrong waaay before that and had never before counseled her or taken any action against her. The Safety Manager admitted that his past practice had been to correct her time sheets and re-submit them without saying anything about it to her.

OK, kids, class is in session!

This case has at least four valuable lessons for employers about retaliation:

No. 1: Even if the underlying claim is not viable, the retaliation claim might be. Retaliation charges have been the most common type of charge at the U.S. Equal Employment Opportunity Commission for a number of years. There are reasons for that. One is that retaliation can apply no matter what type of discrimination one is alleging.

But another is that retaliation can occur even if the employee's underlying claim is wrong. Hear me out. Employees don’t always understand the law well enough to know whether they have a valid claim or not. They also may not have access to all of the relevant facts. (For example, an employee may think that the employer did nothing in response to a harassment complaint when in fact the employer did everything it could have, and more, but couldn’t share that with the employee for confidentiality reasons.)

If the employee honestly believes she has been discriminated against, harassed, or retaliated against, and engages in any protected activity related to that belief, then the employer needs to be very careful because it could be liable for retaliation based on the mistaken-but-honest complaint.

No. 2: Internal complaints about discrimination, harassment, or retaliation are "protected activity." An employee's activity can be protected even if she never files an EEOC charge or threatens to sue. Internal complaints -- including grievances (union and non-union), visits to HR, talks with the supervisor, calls to the company hotline, you name it -- count, too.

No. 3: Even if you have legitimate grounds for taking action against an employee, be sure to consider your past practice in addition to your formal policy. In this case, there was evidence that the plaintiff was bending the rules relating to the way she logged her driving time, and possibly violating the employer's policies. The only problem was that she'd always done that, and the employer knew it and had never addressed it with her . . . until after she followed up on the “sexual harassment” issue.

This No. 3 is really two lessons in one. (Huh?) Part 3.A is, Don’t let employees get away with violating the rules, especially where legal obligations may be involved (as with DOT regulations). The plaintiff’s infractions should have been addressed as they occurred through coaching and progressive discipline.

If you followed Part 3.A, then you don’t have to worry about Part 3.B. Part 3.B is this: If you let your employee get away with rule violations before she engaged in protected activity, don't think you can fix things with a “disciplinary dump” afterward. Any discipline imposed after the protected activity is likely to get you accused of retaliation. Your only hope might be to issue a new, tougher rule that applies to everybody, communicate the new rule to everybody, and then deal with all violators through progressive discipline. Consistently. (And always consult with your employment counsel in advance about your specific situation.)

No. 4: Timing isn’t everything, or the only thing, but it’s still a huge deal in retaliation cases. Let’s say you have an employee who filed an EEOC charge seven years ago. The charge was dismissed five years ago. Six months ago she was put on a Performance Improvement Plan, and she hasn’t improved. Can you fire her? Probably. She may claim retaliation, but you kept her on for seven years after she filed her charge, and five years after the charge was dismissed. Most courts would say that, in all likelihood, the PIP six months ago and the termination today had nothing to do with this ancient history. (As with everything, exceptions can apply, so even in this situation, be sure to consult with employment counsel before you act.)

But what if the employee filed a charge seven months ago and was put on a PIP only six weeks later? This timing looks fishier, doesn’t it? You might have had a legitimate, non-retaliatory reason to put her on a PIP, but you’ll have a harder time defending your actions.

And then you have our underwear case, where an employee was allegedly violating the rules all over the place but no action was taken until almost immediately after she made a complaint about alleged sexual harassment. Ugh.

MY USUAL SUMMARY JUDGMENT DISCLAIMER. The employer lost this round, but that doesn't mean it will lose the case. Summary judgment would have resulted in dismissal without a trial. But it's possible that, after a full-blown trial, the jury will find in favor of the employer.

UNDERWEAR DISCLAIMER. Notwithstanding the title of this post, I do not know the exact type of underwear that the coworker was wearing on the night in question. But I do know for a fact that he was wearing penny loafers with his underwear.