Earlier this month, the Sixth Circuit Court of Appeals
affirmed a jury verdict of $170,250 in
compensatory and punitive damages (and award of plaintiff attorney fees) in
favor of a former female pilot who alleged that she had been unlawfully
discharged under Ohio law for complaining about sexual harassment by other
pilots. Braun
v. Ultimate Jetcharters LLC, No. 15-3462
(6th Cir. 7-8-16). The Court found that the jury could reasonably
rely on the plaintiff’s testimony about her verbal and email complaints and how
she had been terminated shortly after the emailed complaint purportedly for
engaging in conduct – which she denied – that was common among her co-workers
but had never resulted in disciplinary action with them. Finally, the Court affirmed the trial courts
correction of the judgment to reflect the legal name of the defendant employer,
which had litigated the case through a jury verdict without ever denying that
the name in the caption was its legal name and then refused to pay the judgment
on the grounds that the wrong entity had been named.
According to the Court’s opinion, the plaintiff was fired
approximately three weeks after she complained about harassing behavior from
her co-pilots. She had complained about her co-pilots giving her a hard time
because she is a woman. She followed up
with an email referring to it as borderline harassment and asking that they be
made to stop. She was allegedly fired for
using her cell phone in the cockpit, making steep altitude climbs, sending
inappropriate emails and acting inappropriately while travelling (by dancing
and drinking), etc. She filed suit against her employer, but
erroneously identified it as a corporation.
While her employer generally denied the allegations, it admitted that it
had converted from a corporation to a limited liability company several years
earlier. The plaintiff did not amend
her complaint and the defendant employer never sought judgment on the grounds
that it had been inappropriately identified, but was successful in getting all
claims dismissed except the retaliation claim under Ohio Revised Code
4112.02. Even though the plaintiff was
the only witness to testify on her own behalf and the employer proffered 14
witnesses (who apparently made damaging admissions on cross-examination), the
jury found in her favor and she was also awarded attorney fees in an
unspecified amount as the prevailing party.
When she attempted to collect her judgment, however, the defendant
employer refused to pay on the grounds that she had named the wrong corporate
entity. Accordingly, she moved to conform
the judgment to the evidence and her motion was granted. This appeal was joined to the earlier appeal
on liability.
The Court had no difficulty in finding that the plaintiff
had engaged in protected “opposition” activity when she complained about the
co-pilots harassment of her. “Importantly,
“[a] person opposing an apparently discriminatory practice does not bear the
entire risk that it is in fact lawful; he or she must only have a good faith
belief that the practice is unlawful.” The
Court also rejected the employer’s bizarre defense that it could not be liable
for harassing conduct by her co-workers, that she was required to show that it
was the cat’s paw of her co-workers and, therefore, her complaint about such
harassment could not support a retaliation claim. Although the employer argued that her
complaints had been too vague to constitute a complaint about sexual
discrimination, the Court found that she was specific enough in referring to
harassment and mistreatment on the grounds her co-pilots objecting to working
with a woman:
At trial, Plaintiff testified that during each of the four
calls she made to Parsons, she explicitly relayed her belief that she was being
mistreated by Rossi and Wells because she was female. Indeed, Plaintiff testified that in the last
of these calls, she told Parsons: “This is discrimination. This is harassment. [Rossi and Wells] are only doing this because
they do not like to fly with women.”
Causation was easily shown by the temporal proximity of her
emailed complaint and her termination: “this temporal proximity was coupled
with Plaintiff’s testimony that she did not commit the errors for which she was
purportedly terminated, or that some of those same errors were sometimes
committed by non-terminated male coworkers.
Together, these facts were sufficient to establish the fourth element of
Plaintiff’s prima facie case.”
The plaintiff was also able to demonstrate pretext by all
three methods of proof:
“A plaintiff can demonstrate pretext by showing that the
employer’s proffered reason for the adverse action (1) has no basis in fact,
(2) did not actually motivate the defendant’s challenged conduct, or (3) was
insufficient to warrant the challenged conduct.”
In this case, the plaintiff
testified that many of her alleged wrongdoings had no basis
in fact: she denied committing some of the procedural violations of which she
was accused or explained that her actions did not actually deviate from
standard procedures or violate regulations.
Plaintiff also testified that the alleged violations of procedures and
regulations “did not actually motivate” her termination, id.; rather, Gordon
told her that she was fired for sending “[i]nappropriate e-mails” and because
her “[c]onduct while on the road while not performing job functions was not in
line with [UJC’s] image.” (R. 120,
PageID 1666– 67.) Finally, Plaintiff
proffered evidence that, to the extent she may have violated procedures and
regulations, such violations were “insufficient to warrant” her termination
because they were commonplace among male employees who were not punished
The Court also affirmed the jury’s award of punitive
damages.
“It is well-settled that [Ohio Rev. Code §] 4112.99 permits
an award of punitive damages in a discrimination claim” brought under Ohio Rev.
Code Chapter 4112. Waddell v. Roxane
Labs., Inc., No. 03AP-558, 2004 WL 1103710, at *13 (Ohio Ct. App. 2004). To receive punitive damages, Ohio law
requires a Plaintiff to prove by clear and convincing evidence, see Ohio Rev.
Code § 2315.21(D)(4)), that the defendant possessed “actual malice.” Preston v. Murty, 512 N.E.2d 1174, 1175 (Ohio
1987). “[A]ctual malice . . . is (1)
that state of mind under which a person’s conduct is characterized by hatred,
ill will or a spirit of revenge, or (2) a conscious disregard for the rights
and safety of other persons that has a great probability of causing substantial
harm.” Id. at 1176.
Below, the district
court held that Plaintiff adduced sufficient evidence of actual malice at trial
because her evidence suggested that “UJC relied upon acceptable or routinely
tolerated behavior to support its decision to terminate plaintiff’s employment,
and . . . this decision came within weeks of plaintiff’s written report of
alleged sexual harassment.” (R. 163,
PageID 2997.) On review of the record,
we agree with the district court that such evidence provided a sufficient basis
on which the jury could find, by clear and convincing evidence, that UJC acted
with actual malice when it terminated Plaintiffs’ employment.
Finally, the Court affirmed the Rule 60(a) decision to amend
the judgment to identify the correct entity as the plaintiff’s employer in
light of the evidence produced at trial by the employer, which never denied
that it was the defendant in the lawsuit. “Indeed, in its motion for summary
judgment, UJC referred to itself as “Ultimate Jetcharters, Inc.” and thereafter
represented that that entity was Plaintiff’s former employer.”
NOTICE: This summary is designed merely to inform and
alert you of recent legal developments. It does not constitute legal advice and
does not apply to any particular situation because different facts could lead
to different results. Information here can be changed or amended without
notice. Readers should not act upon this information without legal advice. If
you have any questions about anything you have read, you should consult with or
retain an employment attorney.
