When an employer is faced with an allegation of sexual harassment in the workplace, it is inevitable that one “side” of the story will be credited over the other. This decision needs to be made in the moment, as the employer works to take the “effective remedial action” as promptly as possible.

In an April 21 opinion in Lucchesi v. Day & Zimmerman Group by Judge Gene E.K. Pratter of the U.S. District Court for the Eastern District of Pennsylvania, the court addressed whether disparate conduct of an investigation into allegations of harassment and the results of the investigation can give rise to a claim of disparate treatment in violation of Title VII.

Male Employee Accused of Harassment

According to allegations detailed in the opinion, Joseph Lucchesi, a 10-year employee of Day & Zimmerman, was approached by two human resources employees in June 2009 and was told that a female co-worker, Alicia Petruszka, felt “uncomfortable” in his presence and that she was disturbed by text messages and e-mails that Lucchesi had sent to her personal phone and computer from his personal phone and e-mail account. Lucchesi and Petruszka allegedly had “some kind of” consensual sexual relationship — although whether it was ongoing at the time of the visit from HR is not clear. Lucchesi was instructed not to interact with Petruszka at work.

Shortly after this conversation, Lucchesi complained to the company’s senior vice president of HR that he was being treated differently during the investigation into the allegation of harassment — particularly in light of the fact that Petruszka had only spoke to one HR official, while he was “interrogated” by two such employees.

The next day, according to Lucchesi’s complaint, he was told that two HR employees were needed for his interview because he was “intimidating” and that he was also accused of “stalking” Petruszka. Lucchesi responded that Petruszka’s claims were being credited over his and that this was sex discrimination. Lucchesi was fired four days later because he might walk past Petruszka’s cubicle and that future interactions between Lucchesi and Petruszka created a “gray” area for the company.

Discrimination ‘Disguised’

Lucchesi’s complaint alleged that he was terminated because Day & Zimmerman assumed that he must be at fault because of his gender and that the investigation was conducted in a disparate manner. He also alleged that, two months after his termination, Day & Zimmerman tried to disguise its discrimination by recommending to Petruszka that she obtain a protective order.

Day & Zimmerman filed a motion to dismiss based on a failure to state either a disparate treatment claim or a claim for retaliation under either the PHRA or Title VII.

The court first considered Lucchesi’s disparate treatment claim, finding that “the basis of [the] claim can be reduced to the alleged fact that Day & Zimmerman … conducted a superficial and unfair investigation that resulted in Lucchesi’s unwarranted termination.” The court found this claim to be viable on the grounds that discrimination could be inferred from Lucchesi’s description of the investigation — including his allegation that Petruszka was treated differently than he was after engaging in the relationship.

The court then considered Lucchesi’s assertion that he had been subjected to retaliation for complaining about the alleged disparate treatment.

Day & Zimmerman argued that Lucchesi had done nothing more than object to the basic unfairness of the company’s investigation, which is not, in itself, protected activity. The court found, however, that the complaint alleged that Lucchesi had told the HR manager that the company “appeared to credit the allegations of a female employee over a male … without any reason for doing so other than sex discrimination” and that, in combination with the temporal proximity of his complaint and termination, there was a sufficient basis to find a viable retaliation claim.

Finally, Day & Zimmerman argued that Lucchesi had failed to exhaust his administrative remedies with respect to his retaliation claim, on the grounds that he had failed to file a charge alleging retaliation until 304 days after his termination. Lucchesi claimed, however, that he had filed an intake questionnaire within the 300-day period for filing with the EEOC and the court found that the questionnaire was substantial enough to serve as a place-holder for an actual charge under the Supreme Court’s 2008 decision in Federal Express Corp. v. Holowecki .

Impact on Investigations

The core allegation of the case, that Day & Zimmerman discriminated against Lucchesi when it quickly credited the allegations of sexual harassment against him, present a conundrum for employers.

Realistically, the majority of sexual harassment claims involve male harassers and female victims. Furthermore, even when there is some ambiguity in the allegations, employers may err on the side of taking some disciplinary action against the male employee in an effort to mitigate against any future claim of ongoing inappropriate behavior.

The allegations of the Lucchesi complaint, however, would base a valid discrimination claim on this “tendency.” As such, it may prompt employers to reassess how they conduct harassment investigations, while potentially having the perverse effect of militating against the type of remedial action otherwise required in such cases. •

Sid Steinberg is a partner in Post & Schell’s business law and litigation department. He concentrates his national litigation and consulting practice in the field of employment and employee relations law. Steinberg has lectured extensively on all aspects of employment law, including Title VII, the FMLA and the ADA.