A Hodgepodge of Activity in February

There have been a few interesting decisions within the past month in the employment context, but none of them are earth-shattering (unless you are facing a factually similar situation in your workplace).   The NLRB once again dinged a non-union employer for terminating an HR employee for discussing confidential salary information with co-workers because the employer failed to show she was a statutory supervisor and employees have a right to discuss wage information.  After she declined reinstatement, the employer offered “to make the former employee whole by paying her backpay, 401(k) contributions, medical expenses and interest in the total amount of $107,000, to revise its policy to delete the prohibition on employees of discussing their salaries, and to post a Board Notice describing these actions.”  Of course, whether this decision survives is an open question since the D.C. Court of Appeals ruled last month that President Obama lacked the authority to make three recess appointments to the NLRB on January 4, 2012 and, without those recess appointments, the NLRB lacks a quorum to vote.  (Yes, here we go again).  The NLRB announced it intended to appeal the decision in that particular case and essentially otherwise ignore the decision while conducting business as usual until the Supreme Court tells it otherwise.  The Sixth Circuit also issued a few interesting decisions.

In one case, Quinn v. Griffith, No. 12-1465 (6^th Cir. 2-21-13) the Sixth Circuit affirmed a jury verdict holding an employer liable for a sexually hostile work environment created by the manager in a two-person office and the imposition of punitive damages.  The employee apparently set up a hidden camera in the office to substantiate her allegations after the employer’s internal investigation concluded that it could not substantiate her allegations. The trial court refused to permit testimony by the employer’s lip-reading expert to rebut what the jury saw on the videotape.  Even without lost wages, the plaintiff was awarded $25,000 in compensatory damages and $50,000 in punitive damages.   (Attorney fees for a prevailing plaintiff were not discussed in the opinion).  The matter was remanded for the trial court to clarify or modify the allocation of damages among the individual and corporate defendant and among the state and federal claims.  The Court had no difficulty in rejecting the employer’s argument that it should not be held liable for the manager’s conduct because it failed to preserve the Ellerth/Faragher affirmative defense in its answer to the plaintiff’s complaint or in its summary judgment motion.  Moreover, the employer failed to present any evidence of how it had exercised reasonable care to prevent and remedy the harassment.   (Obviously, this is difficult when it failed to distribute a sexual harassment policy, but not impossible according to the Court).   The same could be said of its argument that it could not be liable for punitive damages.  “An employer may avoid liability by showing that it engaged in good-faith efforts to comply with Title VII, which is most often shown by effective implementation of an anti-harassment policy.”

The Sixth Circuit has also heard and rejected a few appeals involving firefighters suing the City of Columbus.   Yesterday’s decision in Arnold v. City of Columbus likewise found no evidence of race discrimination.  This case involved a series of external and internal investigations over a few years into the conduct of the inspections section/fire protection bureau of the fire department.  Employees complained, in particular, about how the internal investigations were conducted and alleged that they were treated differently than white employees in terms of the presence of union officers in interviews, whether certain interviews were tape recorded and whether they could object to the presence of union officers in interviews, etc.   Ultimately, the Court found that the plaintiffs were not treated differently on account of their race.   In the Fullen case, the Court upheld disciplinary action when a plaintiff refused to be interviewed in the presence of a union representative.

 

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 change or be 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.

Sixth Circuit: Judgment for Employer is Affirmed on Sexual Harassment Claim When Investigation and Termination Was Handled Properly.

This morning, the Sixth Circuit Court of Appeals affirmed summary judgment in favor of a hospitality industry employer on a sexual harassment claim when the employer properly investigated and terminated the employee. Balding-Margolis v. Cleveland Arcade d/b/a Hyatt Regency Cleveland, No. 09-3017 (11/10/09). Retired Justice Sandra Day O’Connor was part of the panel which issued the decision. The plaintiff was a long-time waitress who was found to have violated many cash-handling procedures over a period of time, including rules against increasing the amount of her tip on a customer’s credit card payment. After she was fired, she alleged that, among other things, she had been subjected to a hostile work environment and treated differently on account of her age and sex.

According to the Court’s decision, when the plaintiff was hired, she was given copies of several policies, including the employer’s sexual harassment policy (which permitted her to bring concerns to her manager, the Director of Human Resources and a national toll-free hotline), and that she could be immediately terminated for violating cash-handling procedures. Her employment was also governed by a bargaining agreement with the UNITE HERE union. “[T]he Cash Handling Rules generally prohibited an employee from altering a guest check; required that an employee follow proper procedures; and prohibited an employee from handling checks, cash, and credit cards in an improper manner. The restrictions on altering a guest check included prohibitions on changing the tip amount or closing out a check that differed in any way from the customer’s signed receipt.” Notwithstanding these rules, and the fact that she was a trainer who oriented new employees about these rules, “[i]n October 2005, she was issued a warning when two guests left the restaurant without providing a valid form of payment. In January 2006, [plaintiff] received another warning because of a large cash variance following her shift. In May 2006, [plaintiff] received a third warning—a “Final Written Warning”—for adding an additional eighteen-percent gratuity without the customer’s permission.”

A year later, her supervisor noticed that her credit card tips equaled almost 1/3 of her receipts for the day (not including cash tips). “The high tips-to-sales ratio was suspicious and caused [her supervisor] to audit [plaintiff’s] transactions that day. [He] concluded that there were problems with one-third of [her] sales, including receipts for discounted meals that lacked the required discount coupons; ten checks without a signed copy of the room charge, credit card, or other documentation; and two unsigned receipts with listed tips that exceeded the actual food-sales amount. [He] conducted an audit of the two workers with whom [she] had been serving that day but found no similar discrepancies.” He then went back and audited the prior few weeks and involved the Controller and Human Resources Manager, confirmed that there consistently were similar violations and decided to terminate her employment. She “was given the opportunity to explain the various discrepancies, but she failed to do so.”

During the termination meeting, [plaintiff] made general complaints regarding the way that [her supervisor] had administered the staff, but she made no complaints of sex- or age-based discrimination or harassment. Following her termination, Hyatt continued auditing [her] receipts for five dates in April 2007, revealing additional discrepancies. Because [she] had alleged during her termination meeting that [her supervisor] was attempting to get her fired and that he had papered her file and/or stolen the supporting documentation that she needed to explain the discrepancies, Hyatt conducted an audit of [her] transactions during a two week period prior to [his] employment at Hyatt. That audit revealed similar cash-handling problems. Hyatt also conducted an audit of all the checks closed out by the servers on April 25, May 1 through 4, and May 8, 2007, and found that none of them had discrepancies or cash-handling violations similar to [her] discrepancies.

Plaintiff then filed an EEOC Charge and union grievance alleging sexual harassment and age discrimination. Hyatt conducted an investigation, interviewed co-workers and did not find any basis for her claims. She then filed suit in federal court.

The Court concluded that she could not satisfy a prima facie case of age discrimination because she could not show that she was replaced by a substantially younger employee or that younger employees were treated more favorably. A bartender was not her “replacement” because he had already worked in the restaurant part-time before her termination. A “person is not replaced when another employee is assigned to perform the plaintiff’s duties in addition to other duties, or when the work is redistributed among other existing employees already performing related work. A person is replaced only when another employee is hired or reassigned to perform the plaintiff’s duties.”

She also could not show that others were treated more favorably because their alleged violations were not the same.

She claims that the younger employees’ practice of marrying alcohol and their admitted but unproven failure to turn in receipts were sufficiently serious to merit comparison to the disciplinary violation that led to her termination—the cash-handling-policy violation and misappropriation of funds. . . . This is not the case. Marrying alcohol may be a violation of Ohio law, but [she] never engaged in the practice and was never disciplined for not participating. The fact that [she] was terminated for engaging in an illegal practice does not automatically make marrying alcohol and [her] infraction comparable. Misappropriation of funds and marrying alcohol are different circumstances involving distinguishable conduct.

Plaintiff also brought pay discrimination claims because trainers at non-Cleveland Hyatt hotels were paid more than her... However, she presented no evidence that she was paid less than co-workers outside of her protected class in Cleveland “‘for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. . . . . [She] concedes that she was the only server-trainer in Cleveland, and she has presented no evidence that other non-protected employees held “substantially equal” jobs and were paid more. . . . . . [She] further concedes that those employees who were paid a higher rate had greater seniority and were being paid pursuant to the provisions of the CBA.” She also presented no evidence about the age or sex of the non-Cleveland trainers, even if they could be considered as part of the same establishment.

The Court found that the plaintiff presented a prima facie case of sexual harassment, especially based on two allegations of improper physical contact and her supervisor’s daily bragging about his sexual life:

(1) The Director of Sexual “once invited [her] to lie down in his room;”
(2) The Security Director once told [her] that she was attractive;”
(3) The Director Security “once hit [her] on the buttocks and “untied [her] apron, which was tied in the back;”
(4) Her supervisor “once commented that he had a large penis;”
(5) Her supervisor “once told [her] that he had sex with one of her customers, [her] to provide a free meal to that customer, and then “put his hands . . . against the wall and dry humped it or did a pelvic thrust against it,” stating “I did her, I did her,”;
(6) Her supervisor “had once asked a female line cook to do the “boobie dance,” which involved putting the cook’s “hands underneath her chest” and moving them “up and down” and shaking “her hips;”
(7) Her supervisor “repeatedly bragged to [her] about the day that he had sexual intercourse with a fellow Hyatt server and [her] female co-worker at the Hyatt;”
(8) Her supervisor “repeatedly talked to [her] ‘about a sexual relationship he had with a former co-worker, how that co-worker was pregnant, how [he] needed to mail that pregnant woman a check so that the woman can pay for an abortion,” and how he wanted [plaintiff] to put [his] check in the mail.”

In light of her evidence of sexual harassment, Hyatt would be liable for the supervisor’s actions unless it could show by a preponderance of the evidence “that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior” and that [the plaintiff] ‘unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.’ . . . Generally, an employer satisfies the first part of this two-part standard when it has promulgated and enforced a sexual harassment policy.”

The Court found that Hyatt had an effective sexual-harassment reporting policy and that the plaintiff failed “to take advantage of Hyatt’s corrective policy was unreasonable.”

Although her post-deposition affidavit states that she complained to Hyatt management verbally over thirty times, [her] deposition testimony indicates that she never complained to anyone concerning [her supervisor’s] harassment and discriminatory conduct other than to [her supervisor] himself. Her deposition testimony further establishes that she never complained to anyone about [the Security Director’s] conduct. [Plaintiff] failed to make these complaints notwithstanding that she testified that she was aware of the open-door policy, the complaint procedure, and the fact that if her immediate supervisor failed to act on her complaint she could go elsewhere. [She] clearly took advantage of the complaint process with regard to a variety of run-of-the-mill matters, but she failed to take advantage of the policies when it mattered most.

Likewise, the Court rejected her retaliation claim. She failed to testify in her deposition about any instances of complaining to management about any sex or age discrimination, even though she complained in writing and verbally about a number of other matters. In order to invoke the protections of federal or state law, an employee needs to be direct in complaining about discrimination:

a vague charge of discrimination in an internal letter or memorandum is insufficient to constitute opposition to an unlawful employment practice. An employee may not invoke the protections of the Act by making a vague charge of discrimination. Otherwise, every adverse employment decision by an employer would be subject to challenge under either state or federal civil rights legislation simply by an employee inserting a charge of discrimination.

In any event, the Court also concluded that even if the plaintiff could satisfy her prima facie case, the employer had shown a legitimate, nondiscriminatory and non-retaliatory reason for firing her.

Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/09a0732n-06.pdf.

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 change or be 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.