Last week, the federal Sixth Circuit Court of Appeals affirmed a $414,600 jury verdict for compensatory and punitive damages, back pay and front pay as well as $157,734 in attorney’s fees for retaliation claim brought by a former supervisor who claimed that she had been demoted on account of her gender and retaliated against when she complained internally and to the EEOC. Hubbell v. FedEx Smart Post, Inc., No. 18-1373 (6th Cir. 2019). The plaintiff produced sufficient evidence to show that the employer had engaged in conduct towards her that would deter a reasonable person from exercising their protected rights through discriminatory disciplinary actions, surveillance and payroll policies. Further, some of the actions occurred close in time to her protected conduct. Finally, “the law in this circuit, however, is that a written anti-discrimination policy does not by itself shield an employer from punitive damages,” especially when there is evidence that the employer did not necessarily follow its own policies or investigate the plaintiff’s internal complaints of discrimination.
According to the Court’s opinion, the plaintiff had been working as a supervisor without any disciplinary record when the new hub manager suggested that women were better suited for administrative roles and she should seek a demotion. When she refused, she claimed that he assigned her and other female supervisors the worse employees. She was also given poor performance reviews and disciplinary actions. When she objected and claimed to HR that he was discriminating against her, no formal or documented investigation was conducted. After she was demoted, she was told that she – and she alone – could not clock into work more than three minutes early when all other employees were allowed to clock in and be paid 15 minutes early. She subsequently filed an EEOC Charge. She was then subjected to closer scrutiny, and was issued multiple disciplinary actions. She was also restricted from working more than 8 hours/day. When she filed another EEOC Charge, the guards were told to monitor her restroom breaks and other employees were interrogated about their conversations with her. She was issued a disciplinary action for attendance even though she had doctor’s notes and was on medical leave. Finally, she was not even assigned to work overtime during peak periods. She was fired shortly after she initiated her lawsuit and then amended her complaint to include retaliatory discharge.
While the trial court dismissed her hostile work environment claim on summary judgment, at trial several former co-workers testified in support that she was treated more harshly and more closely scrutinized than any other employee. The jury found that she had suffered retaliation, and awarded her damages, but also initially found that the employer had acted in good faith, which would relieve it of punitive damages. The judge told the jury to re-deliberate the issues with conflicting verdicts (i.e., punitive damages and employer’s good faith) and the jury returned by finding that the employer had not acted in good faith. The trial court denied the employer’s post-trial motions, but reduced the punitive damage award in accordance with the damage caps in the 1991 Civil Rights Act.
On appeal, the Sixth Circuit affirmed the decision and verdict in all respects
.
Supervisory knowledge. There was no dispute that the decisionmakers were aware that she had filed EEOC Charges. However, the court agreed that she did not carry her burden of proving that the decisionmakers were aware of her lawsuit until after she was fired. One denied knowing about the lawsuit and another testified that he could not recall when he learned about it. “Although [the plaintiff] argues that the question of whether to believe Jensen’s testimony should be left to the jury, Jensen’s statement that he did not remember when he learned that [she] filed suit is simply not enough to carry her burden of showing knowledge.”
Retaliation. The trial court had found that the only materially adverse job action which the plaintiff had suffered was the employer’s refusal to let her clock in more than 3 minutes early when her co-workers had no such restriction. However, regardless of how the trial court ruled on summary judgment, the jury and appellate court were not limited in considering such evidence that was introduced at trial. Because this pre-dated her first EEOC Charge, the employer argued that she could not prove that she suffered any actionable retaliation from the negative feedback in her disciplinary actions and scrutiny. The Sixth Circuit disagreed.
“a plaintiff seeking Title VII’s
protection against retaliation need show only “that a reasonable employee would
have found the challenged action materially adverse, which in this context
means it well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” . . . .reiterating that the showing required
for a Title VII retaliation claim “is less burdensome than what a plaintiff
must demonstrate for a Title VII discrimination claim.”
Accordingly, the closer scrutiny, the unwarranted disciplinary actions over trial matters, and interrogating her co-workers about their conversations with her, etc. could support a finding of retaliation.
A reasonable factfinder could also
find that some or all these acts were taken in retaliation for Hubbell’s EEOC
complaint(s). Trial evidence revealed that
Hubbell was repeatedly disciplined within a year of filing her EEOC complaints,
starting with three disciplinary writeups within approximately two months of
filing her first EEOC complaint—the first one coming a mere four days after she
filed her complaint. Such close temporal
proximity, standing alone, may be enough to prove causation.
Punitive
Damages. While a plaintiff is
required to show, among other things, that the employer acted with malice or
reckless indifference with respect to the plaintiff’s civil rights, the plaintiff is not required to show that the
employer’s behavior was “egregious.” While egregious behavior is sufficient to
show malice or reckless indifference, less egregious behavior can satisfy the
standard. Moreover, even if the
employer took steps to avoid discriminating by distributing and training on
anti-discrimination policies, it can still be held liable for the actions of a
manager acting within the scope of his employment who is also acting with
malice or reckless indifference. “The
law in this circuit, however, is that a written anti-discrimination policy does
not by itself shield an employer from punitive damages. Tisdale
v. Fed. Express Corp., 415 F.3d 516, 532–33 (6th Cir. 2005).” Moreover, in this case, there was evidence
that the employer failed to formally investigate the plaintiff’s allegations.
Attorney’s
Fees. The court found no abuse of
discretion in reducing the amount of fees, even if the employer had not
objected to the amount.
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.
