He filed for custody of the kids; she filed a sexual harassment lawsuit

I couldn’t make this set of facts up if I tried.

More after the jump…

Pay attention, Hollywood

Ok, here goes nothing…

According to the court’s opinion, Dr. Sharon Waltz worked on and off for Birmingham Healthcare, Inc. and Synergy Medical Solutions, Inc., for a little over a decade. Her boss was CEO, Jonathan Dunning.

Allegedly, shortly after Dr. Waltz went from part-time to full-time, Mr. Dunning began making sexual advances. In March, 2003, after dinner and a late night at the office, the two had sex at the office. Ms. Waltz testified that she initially resisted Mr. Dunning’s advance, but later gave in. Described in the court’s opinion as a sexual assault, Ms. Waltz didn’t tell anyone about what happened that night until 2012.

But apparently, although Dr. Waltz testified that she told Mr. Dunning several times that she didn’t want to have sex with him, the sexual relationship continued, and often involved pretty rough sex. But, then, Dr. Waltz, who has seemingly had enough of Mr. Dunning, resigned in 2004.

Except she returned to work a few weeks later.

And, eventually, Waltz and Dunning discussed a future relationship, including having children. Sure enough, in 2005 and 2007, Waltz gave birth to Dunning’s kids. Mr. Dunning was present for the birth of both children. (How sweet!)

The opinion notes that the two even referred to each other as husband and wife. (Awww!) And Dunning gave Waltz a wedding ring that she wore in public. They did activities together as husband and wife, and took “family” vacations too. Yes, they went to Disney World. Mr. Dunning also purchased a home and partially furnished it for Dr. Waltz and their children.

Oh, did I mention that Dunning was already married? Yep, to someone else. (The opinion is silent about whether Dunning’s actual wife knew about Waltz, the ring, the vacations, the kids and such).

(I’ll pause right now so that you can Google “Sharon Dianne Waltz” and “Jonathan Dunning”)

(And if you need some bathroom reading material, here are the Waltz and Dunning deposition transcripts).

Now, where was I? Right. In October 2008, Dr. Waltz permanently ended her employment and went to work for Synergy. Eventually, things went south with Dr. Dunning and Dr. Waltz resigned in 2012. Notably, prior to resigning, Dr. Waltz never complained to anyone, other than Mr. Dunning, about alleged sexual harassment.

But, then, Mr. Dunning filed a complaint in family court seeking custody of his two kids with Dr. Waltz, whereupon she responded with a sexual harassment complaint at the EEOC. The EEOC found that there was insufficient evidence to support a sexual harassment claims. So, Dr. Waltz filed a lawsuit in federal court.

And after all this, Dr. Waltz blew the statute of limitations.

Here’s an interesting fact for you: Alabama does not have a general state anti-discrimination statute.

That means that, for an employee who believes that he or she has been a victim of sexual harassment, that employee must go to the EEOC. But, you need to be timely with a charge of discrimination: 180 days from the date of discrimination.

Dr. Waltz’s problem, if you scan up the post a few inches, is that she switched companies in 2008. So, filing with the EEOC in 2012, well, about 3.5 years too late. (And, she voluntarily dismissed her Title VII claims against Synergy).

But, even if Dr. Waltz had been timely with her sexual harassment claims, she would have lost. That is, the court found this to be the “exceptional” case, where no reasonably juror would conclude that the Mr. Dunning’s conduct was “unwelcome”:

While Dunning’s conduct was “unwelcome” at the outset and possibly for some time thereafter, the facts, even when construed most favorably to Plaintiff, demonstrate that the relationship later became consensual and that it had been that way for many years prior to February 14, 2013, the date Plaintiff filed her complaint….While no single piece of evidence, standing on its own, conclusively establishes that Plaintiff and Dunning were in a consensual relationship, when all of the evidence is considered together it is clear that the relationship had become consensual more than two years before Plaintiff filed suit.

Employer takeaway: anti-harassment 101.

I shake my head at a case like this one. Because I have little doubt, as the Court noted, that there were some very unwelcome aspects to this relationship. And whether the relationship truly became consensual, well, I’m not so sure.

While the facts here are tailor-made for this blog — yeah, they are! — it’s not hard to imagine a situation in any other workplace, where an employee is placed in a situation of possibly having to succumb to the sexual advance of a boss. Maybe The Boss. Therefore, it is critical that you provide employees with a variety of avenues through which to complain about unwelcome sexual advances. Make sure that your handbook specifically addresses complaining about workplace harassment. And reinforce that with training.