Crossing professional boundaries: Demotion leads to sex bias claims

EMPLOYER LIABILITY

July 2017
Brinton M. Wilkins

The workings of the human mind have fascinated and per­plexed people for eons. Scientists, artists, politicians, lawyers, and theologians have all grappled, in one way or another, with how the mind works and how its functioning affects society. But perhaps no group of people has systematically studied the human mind, its heights, and its recesses, more rigorously than psychologists. From Freud to Skinner, to Piaget, to Erikson, to Maslow, psychologists have tried to make sense of the mind in­side the brain, often coming to radically different conclusions. The fact that they don’t all agree points to one important fact: Psychologists—those masters of the mind—are human, too, subject to all the foibles and faux pas they try to illuminate. And that means psychologists, like all professionals, may make mistakes and can be difficult employees. Thankfully, as the University of Denver recently learned, the law grants the same protections to organizations that employ university-trained professionals as it does to the owner of the corner market.

Training director gets too personal

Colorado Seminary, which owns and operates the University of Denver, hired Tawny Hiatt to work as a staff psychologist and training director at the Univer­sity of Denver’s Health and Counseling Center. As part of her duties, she supervised both predoctoral and post­doctoral fellows.

Emily Fogle, one of Hiatt’s postdoctoral supervis­ees, suggested that a former classmate, Abby Coven, hire Hiatt to supervise her in her private practice. Coven hired Hiatt, and the two later developed a romantic re­lationship that continued past January 2013, when Hiatt quit supervising Coven.

On January 28, 2013, Coven told Fogle about her romantic relationship with Hiatt. Fogle then informed Hiatt’s supervisees as well as her supervisor, Jacaranda Palmateer, of the relationship. Palmateer and another of Hiatt’s supervisors, Alan Kent, held a meeting with Hiatt and her supervisees in mid-February. After the meeting, several things occurred.

First, Fogle and two interns chose to end supervision with Hiatt. Second, Fogle told Kent that Hiatt treated her supervisees like they were patients in therapy. Third, Kent determined that Hiatt’s relationship with Coven fell into an “ethical grey area.” And fourth, Kent began to hold frequent talks with Hiatt.

During those conversations, Hiatt refused to accept any responsibility for her supervisees’ reaction to her supervisory style and instead blamed their reactions on their own pathologies. Kent eventually determined that Hiatt showed “a serious lack of judgment given her posi­tion as a role model for the trainees.”

Temporary demotion becomes permanent

Kent and Palmateer determined that (1) Hiatt had lost credibility and authority with a majority of her train­ees, (2) her conduct was ethically questionable, which was problematic because a training director needs to exhibit “exemplary ethics, boundaries, and professional­ism,” (3) a training director’s “approach to therapy and supervision requires a strict adherence to boundaries[,] which [wasn’t] demonstrated in this situation,” and (4) Hiatt’s response to the students’ reactions to her ac­tions showed a “lack of personal responsibility.”

Kent and Palmateer presented Hiatt with three options: (1) resignation; (2) demotion followed by six months of outside counseling on her supervisory style; or (3) retaining her in her position and handing the mat­ter over to HR. Although Hiatt accepted a demotion, she first had her attorney send a letter to the university claiming its actions constituted sex discrimination.

After being demoted, Hiatt met with an outside con­sultant who opined that she “likely could return” to a supervisory capacity, but she was unlikely to change her style. At the same time, Palmateer conducted a perfor­mance review criticizing Hiatt for making herself un­available to clients. Six months after she accepted the demotion, Kent and Palmateer determined that Hiatt shouldn’t be returned to a supervisory position.

In reaching that conclusion, the supervisors ex­pressed concerns about what they considered to be Hi­att’s unprofessional behavior in staff interviews. They also told her that they were concerned that she had un­clear boundaries with her supervisees and refused to acknowledge her supervisees’ complaints. Indeed, the supervisees perceived that Hiatt “intentionally breaks them down to the point of tears, is intrusive in their per­sonal issues, blurs the boundaries of supervision and therapy, and then holds herself up as the rescuer.”

Internal EEO complaint goes nowhere

In September 2013, Hiatt filed a grievance with the university’s HR department, seeking to be reinstated as training director. She also filed an EEO complaint with the university, alleging sex discrimination and retalia­tion. Kent and Palmateer responded, and the university investigated.

After completing the inquiry, the university denied Hiatt’s EEO complaint and sent an e-mail to her detail­ing the steps she would have to take to resume her su­pervisory duties, including developing “better aware­ness about the power she holds” and “demonstrating appropriate professional boundaries in all contexts.”

Former director takes medical leave

Between November 2013 and February 2014, Hiatt took a medical leave of absence under the Family and Medical Leave Act (FMLA). When she returned, she filed sex discrimination and retaliation charges against the university with the Equal Employment Opportunity Commission (EEOC).

Upon her return to work, Palmateer increased Hi­att’s required weekly clinical hours from 22 to 24. Hiatt requested that she not be required to work longer than eight-hour days and that the university provide her with dictation software to help her prepare timely case notes. The university didn’t give her the dictation software.

Palmateer also required Hiatt to provide a doctor’s note for sick leave unrelated to her FMLA leave, receive permission before identifying blocks of time during which she would be unavailable for clinical appoint­ments, and make up missed clinical time.

In late April 2014, Kent and Palmateer observed that Hiatt was providing late case notes and was excessively absent. Kent expressed concerns about Hiatt publicly discussing her complaint against the university, and she accused him of spying on her to make sure she was at the university when she was supposed to be.

On May 30, 2014, Hiatt delivered a letter of resigna­tion to the university, and on January 28, 2015, she sued her former employer under Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments Act of 1972, alleging that her demotion and the univer­sity’s refusal to reinstate her were retaliatory and the result of illegal sex discrimination. The trial court ruled against her on all of her claims, and she appealed to the U.S. 10th Circuit Court of Appeals in Denver (whose rul­ings apply to all Utah employers).

10th Circuit rejects Title VII and Title IX claims

Title VII forbids sex discrimination and retaliation against an employee who complains of sex discrimina­tion. Similarly, Title IX prohibits sex discrimination and retaliation based on complaints about sex discrimination in educational programs that receive federal funding.

Because Hiatt didn’t have direct evidence of sex dis­crimination—such as a supervisor stating, “I’m demot­ing you because you’re a woman”—she could make her discrimination claims under either Title VII or Title IX stick only if she could show that the university’s stated reasons for disciplining her were a pretext, or an excuse, to cover up illegal discrimination. The 10th Circuit ex­plained that she could establish pretext if she could show that the nondiscriminatory reasons the university gave for disciplining her were “so incoherent, weak, inconsis­tent, or contradictory that a rational” person would not believe them.

The university provided evidence that the decision to demote Hiatt was a legitimate nondiscriminatory employment action. The 10th Circuit agreed. The dis­ruption that her actions caused among her students, the “ethically grey” manner in which she addressed her re­lationship with Coven, and her problematic supervisory style were, according to the court, sufficient to show that the university’s decision to demote her and not reinstate her to the training director job was legitimate nondis­criminatory and nonretaliatory.

The fact that the university offered consistent reasons for its actions beginning shortly after the February 2013 meeting between Hiatt and her supervisees and continu­ing through the decision not to reinstate her tended to show that its reasons weren’t concocted to excuse illegal behavior. Moreover, her attorney’s letter claiming sex discrimination wasn’t sent until after Kent and Palma­teer explained the reasons for her demotion, which cut against any argument that their reasons were pretextual or that the university was retaliating against her for com­plaining about sex discrimination. As the court stated, the university “could not retaliate against . . . Hiatt’s pro­tected activity until she had engaged in such activity.

Finally, the fact that three supervisees chose to dis­continue their supervision with Hiatt and that Kent and Palmateer conducted an investigation that included discussions with Hiatt, a review of professional litera­ture regarding her ethical obligations, and a call to the American Psychological Association’s ethics office mili­tated against finding the university’s stated reasons for disciplining her to be pretextual. Accordingly, the 10th Circuit upheld the trial court’s decision to dismiss all of Hiatt’s claims. Hiatt v. Colorado Seminary, D.C. No. 1:15- cv-00192 (10th Cir., 2017).

Lessons learned

Discrimination can be established in many ways. Although direct discrimination does occur, illegal discrimination is often accomplished in more subtle ways. Federal law recognizes that reality and gives em­ployees the ability to use that subtle evidence to prove claims of discrimination. However, Hiatt’s case against the university shows that neither Title VII nor Title IX requires that employers be punished for injustices that employees merely perceive but that truly don’t exist.

If you want to ensure that your organization is safe from allegations of sex discrimination and retaliation, make sure you are basing your employment decisions on legitimate nondiscriminatory reasons. When employ­ees complain, take their complaints seriously and docu­ment your investigation. Maintain open communication with employees who are upset. And if an employee has complained, seek competent legal counsel to help you ensure your actions aren’t misinterpreted.

You can contact the author at bwilkins@kmclaw.com or 801-328-3600.