Seyfarth Synopsis: A Massachusetts federal court has found that reporting a rumored office romance and complaining about paramour favoritism can be protected activity that is protected by anti-retaliation laws. The court also found for the first time that paramour favoritism can be the basis of an unlawful discrimination claim.

An employee went to Human Resources to report that he thought his male boss was having an "inappropriate relationship" with a female employee. The employee also reported that he thought his boss was favoring his rumored paramour over male employees. Two months later, the employee who reported the rumor was fired. In Downing v. Omnicare, Inc., the federal district court for the District of Massachusetts found that the employee may have a viable retaliation claim under Massachusetts law even though his reports of office romance were based on nothing more than rumor.

Throughout his employment with Omnicare, Plaintiff Patrick Downing reported to Jeffrey Stamps. Downing began to believe that Stamps was romantically involved with another Omnicare employee, Karen Burton. Downing's belief was unsubstantiated — it was based on things like his perception that Stamps and Burton were "flirting" and touching arms at work events, that Burton told him that she was getting a bikini wax before attending a conference with Stamps, that Stamps and Burton attended a spouse-friendly event without their spouses, and that another employee told him that she thought Burton and Stamps engaged in sexual activity while attending a conference. Also, Downing at one point recommended to Stamps that Burton, who reported to Downing at the time, should be fired because of poor performance. Downing claimed that Stamps told him, "if you terminate her, I'll save her."

In 2011, Downing interviewed multiple candidates, including Burton, for two Regional Vice President positions. Downing felt Burton was not qualified and therefore offered the positions to other candidates. During the interview process, Downing felt Stamps tried to push for Burton, and then acted "more coolly" towards Downing after he didn't offer the positions to Burton.

In early 2012, Stamps gave Downing his 2011 performance review and informed him that he would not be receiving a raise. Disappointed, Downing turned to Human Resources. In April 2012, he reported to Human Resources that he thought Stamps and Burton were having an inappropriate relationship, that he thought Stamps was favoring Burton over male employees, and that his lack of a raise was punishment for not promoting Burton. The Human Resources employee reported the conversation to the CEO and also claimed that Downing requested a severance package. Downing, however, denies that he requested a package or that he wanted to leave. Regardless, the CEO decided to place Downing on a leave of absence in May 2012 and terminated his employment in June 2012 purportedly because Downing did not want to continue his employment.

Downing brought suit against Omnicare alleging that Omnicare retaliated against him in violation of the Massachusetts anti-discrimination statute, Chapter 151B, for reporting Stamps' rumored relationship with Burton to Human Resources. Omnicare moved for summary judgment. The court found that to withstand summary judgment and proceed to trial, Downing had to establish that he had a reasonable belief that Stamps was engaged in wrongful discrimination, that he engaged in a protected activity, and that Omnicare fired him because of the protected activity.

The court first found that Downing presented enough evidence to show a reasonable belief that Stamps was engaged in unlawful discrimination by favoring his supposed paramour over male employees. Because Downing reasonably believed that Stamps was engaged in unlawful discrimination, Downing's complaint to Human Resources was protected activity "regardless of whether a relationship actually existed." Notably, this means that an employee may be able to bring a discrimination suit based on paramour favoritism. This is the first time that a Massachusetts court has recognized that paramour favoritism can be the basis of a discrimination suit. Further, the court's decision means that an employee may have a retaliation claim merely by reporting a rumor of an office romance.

The court also found that the fact that Omnicare put Downing on leave just one month after he spoke to Human Resources was enough evidence to show causation. The court, therefore, found that Downing had a viable retaliation claim and scheduled the claim for a jury trial in December.

Downing v. Omnicare serves as a reminder that reports of office romance — even rumors of office romance — and paramour favoritism should be taken seriously. Even if a report is ultimately unsubstantiated, taking action against the reporting employee may still be considered retaliatory if the employee believed what he or she was reporting.

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