Showing posts with label hostile work environment. Show all posts
Showing posts with label hostile work environment. Show all posts

Monday, February 5, 2024

Sixth Circuit Rejects Conclusory Allegations in Complaint of Racial and Retaliation Discrimination and Harassment

 Last week, the Sixth Circuit affirmed the dismissal of a racial discrimination, harassment and retaliation claim against a university. Ogbonna-McGruder v. Austin Peay State University, No. 23-5557 (6th Cir. Jan. 30, 2024).   First, the Court found that discrete acts of discrimination rarely constitute a hostile work environment claim.  Second, it found that four acts over more than 30 months were not sufficiently severe or pervasive enough to constitute harassment.  Third, her retaliatory harassment claims failed for the same reasons, even if the burden of proving retaliation is lower than discrimination.  Fourth, her discrimination claims failed because she failed to allege that they were motivated by her race or that she was treated differently than anyone who was similarly situated from her. “[O]ur circuit has repeatedly held that a retaliatory hostile work environment claim must include evidence that the harassment was severe or pervasive.”

According to the Court’s opinion, the plaintiff taught university classes for more than a decade when the university decided to divide her department.  She was unhappy with a number of decisions made about her reassignment, including her classes, her performance evaluations and the location of her office, etc.  When she appealed some of these decisions, she was told that a decision had been wrong, but denied that they were not racially motivated.  She filed an EEOC Charge and later filed suit for discrimination, harassment and retaliation.  The trial court dismissed her complaint for failure to state an actionable claim.

The Court agreed that the plaintiff had failed to sufficiently allege severe or pervasive harassment based on a number of employment actions taken against her over a 30 month period:

First, the district court correctly found that the allegations of discrete acts of discrimination could not be characterized as part of the hostile work environment claim. The Supreme Court has explained that under Title VII, a plaintiff may bring a claim alleging that either (1) an employer engaged in “discrete discriminatory acts” such as “termination, failure to promote, denial of transfer, or refusal to hire”; or (2) the employer’s “repeated conduct” created a hostile work environment. . . . Because the two claims are “different in kind,” we have consistently held that allegations of discrete acts may be alleged as separate claims, and as such “cannot properly be characterized as part of a continuing hostile work environment.” . . .

 . . . . Her allegations that she was denied the opportunity to draft a grant proposal and teach summer courses, received low evaluations, was replaced by a white adjunct professor, and was reassigned to teach public management courses represent discrete acts that could perhaps support separate claims of discrimination or retaliation under Title VII.

 . . .

But even viewing those allegations [of four incidents] as a whole, [Plalintiff] did not sufficiently allege facts from which we may infer that the harassment she experienced was severe or pervasive. Courts consider the totality of circumstances in determining the severity and pervasiveness of alleged harassment, including “the frequency of the discriminatory conduct; its severity; whether it [was] physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfere[d] with an employee’s performance.”  . . . Notably, the alleged harassment must be both objectively and subjectively severe and pervasive to be actionable. Id. at 21–22. Allegations of “simple teasing, . . . offhand comments, and isolated incidents (unless extremely serious)” do not suffice. . ..

             . . . As an initial matter, those events occurred over a period of approximately two and a half years—that is too infrequent to demonstrate that her workplace was “permeated with” ridicule and insult. . . . And defendants’ comments about her teaching abilities and qualifications, while undoubtedly offensive, are not sufficiently serious to constitute severe harassment.  . . .  Moreover, she did not allege that the harassment was physically threatening. Her conclusory assertions that defendants’ actions “unreasonably interfered with [her] work performance,” without alleging supporting factual allegations, is insufficient for purposes of a motion to dismiss.  . . . Because she failed to plausibly allege severe or pervasive harassment, the district court did not err in dismissing her race-based hostile work environment claim.

While the Court agreed that there was a lower standard of proving retaliation compared to discrimination, this did not save her retaliatory harassment claim because, as discussed above, she failed to allege sufficiently severe or pervasive behavior necessary for the harassment part of her claim.  “[O]ur circuit has repeatedly held that a retaliatory hostile work environment claim must include evidence that the harassment was severe or pervasive.”

When the employer argued that her discrimination claim was untimely -- because the alleged acts took place more than 300 days before her EEOC charge was filed -- she apparently did not make any legal argument to the contrary.  Accordingly, her claim was deemed abandoned on appeal.  Nonetheless, the Court also observed that she failed to allege that any of the discrete acts were motivated by racial animus and to allege that she was treated worse than anyone similarly situated to her.  “]H]er conclusory statement that [the employer] treated her poorly “because of her race” is insufficient for purposes of a motion to dismiss.”

Similarly, when the employer challenged her retaliation claim as untimely, she made no legal arguments in opposition.  Accordingly, her claim was deemed abandoned.

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.

Monday, February 6, 2023

Franklin County Court of Appeals Rejects Discrimination and Hostile Work Environment Claims Despite a Toxic Work Culture

At the end of last year, the unanimous Franklin County Court of Appeals found that the existence of a “toxic work culture” (as described by a concurring opinion) does not necessarily mean a legally hostile work environment or unlawful discrimination.  Hinton v. Ohio Dept. of Youth Servs., 2022-Ohio-4783.  The plaintiffs were assigned by one state agency to work alongside the employees of another state agency, which had its own rules and disciplinary procedures.  Even though all of the employees (including the plaintiffs) reported to the same supervisor, the Court concluded that the plaintiffs could not compare themselves to the other agency’s employees without evidence that they had been subject to and violated similar rules or evidence that such rules had been violated by anyone outside their protected class.  They also could not show pretext when they admitted violated DYS rules.  Finally, they could not base hostile work environment claims on overhearing a relatively few number of vague conversations about politically charged and potentially race-based issues (like gun control, police shootings, abortion, unidentified movies, lynching, homophobia, etc.) which were not directed at them personally, and were not physically threatening or humiliating.  The plaintiffs’ subjective reaction to the alleged conduct could show that it interfered with their work, but it could not prove that the workplace was objectively hostile or abusive to a reasonable person. The Court also rejected the retaliation claim for being filed outside the two-year statute of limitations under the Court of Claims Act. 

According to the Court’s opinion, the plaintiffs worked at an IT Help Desk staffed by both ODRC and DYS employees, which were subject to the rules of their respective agencies.  All of the ODRC employees were white and the DYS employees were black.  There was one mixed race contractor.   The plaintiffs admittedly violated rules of their employing agency and apparently were unaware of the rules governing the employees of the other agency, merely assuming that they were the same, and whether the other employees had obtained prior authorization for their actions.  One plaintiff worked a tiny amount of unauthorized overtime.   One plaintiff corrected his own timesheet on the computer without prior authorization.  They both learned from the contractor that the ODRC employees had been called into a meeting with their supervisor and told if they had complaints about the plaintiffs, they had to complete written incident reports.  The plaintiffs similarly submitted written complaints about the ODRC employees, became upset by the situation, eventually visited EAP and then left work for mental health reasons before filing their lawsuit, which was dismissed on summary judgment.

The appeals court found that they could not prevail on discrimination claims for a number of reasons.  First, they could not show that the ODRC employees had violated similar rules because the ODRC employees were subject to ODRC rules, not DYS rules, and there was apparently no evidence what those rules were or whether their conduct had been previously authorized.  Second, the plaintiffs admittedly violated DYS rules and could not show that their disciplinary action and coaching was pretextual for discrimination.   The Court also found that it was speculative that the meeting held with the ODRC employees was racially motivated merely because the employees were all white because it is a legitimate business reason to meet with employees to explain the complaint procedures and the contractor was not at her desk when the meeting was called. 

The Court also rejected the hostile work environment claims.  First, the plaintiffs could not rely on the alleged discriminatory conduct which had already been rejected.  Second, it found that the relatively few overheard conversations – i.e., no more than six in a four-to-six month period – were too infrequent to be “pervasive” or support a hostile work environment claim.    They were also not severe enough: 

Considering all the circumstances, we agree with the Court of Claims that appellants have not demonstrated circumstances severe enough to constitute harassment within the meaning of a hostile work environment claim. The conversations appellants overheard, while offensive utterances and in poor taste, were infrequent and did not occur regularly. [Plaintiffs] alleged they overheard these conversations only a few times and could not provide specific details about when they occurred or the contents of the conversations beyond their general topics. Additionally, the conversations were not directed at appellants, and the "second-hand" nature of the comments is relevant to determination of their severity.

While the plaintiffs could show that the alleged conduct subjectively affected them and forced them to leave their jobs, a subjective feeling or belief is not evidence of an objectively hostile or abusive work environment:

Though appellants alleged the working conditions were so hostile as to force them to separate from their employment, this argument only reflects appellants' subjective perceptions of the conduct. However, in order for the conduct to be actionable under a hostile work environment claim, appellants must also demonstrate the conduct is severe and/or pervasive enough to create an objectively hostile or abusive work environment. . . . The work environment is objectively hostile or abusive where it is "an environment that a reasonable person would find hostile or abusive." (Internal quotations and citations omitted.) Id. "Mere utterance of an * * * epithet which engenders offensive feelings in an employee does not sufficiently affect the conditions of employment" to create a hostile work environment. (Internal quotations and citations omitted.)

Here, appellants put forth evidence that they did not get along with their ODRC counterparts at the help desk. However, mindful of the stringent standard applicable to hostile work environment claims, appellants simply do not allege sufficient harassment based on race such that there is a genuine issue of material fact on this claim. Based on the Civ.R. 56 evidence presented, the conversations [Plaintiffs] overheard were infrequent, isolated incidents, and the conversations were not directed at appellants. The comments were not physically threatening or sufficiently humiliating to create a hostile work environment claim. Appellants failed to demonstrate a genuine issue of fact that the alleged conduct was so severe or pervasive as to create an objectively hostile work environment. . . . Accordingly, we agree with the Court of Claims that appellees are entitled to summary judgment on the hostile work environment claim.

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.

Wednesday, May 4, 2022

Sixth Circuit Rejects Title VII Discrimination and Retaliation Claim Where Plaintiff Received Three Promotions in Year before Termination

 Last month, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on a Title VII sexual orientation and retaliation claim where the plaintiff had been fired for misconduct a year after being hired and receiving several promotions and raises.  Boshaw v. Midland Brewing Co., No. 21-1365 (6th Cir. 4/26/22).  The Court found it speculative that his sexual orientation was held against him when he received three promotions within 8 months of being hired when he never hid his sexual orientation on his Instagram account and reposted it on his Facebook account after his first promotion.  It is not illegal to discriminate against or request an employee to change their “spiky” hairstyle or hide visible body piercings.   Further, the passage of three months between his protected activity and his termination was “a firm indicator of a lack of a causal link.”  Finally, he could not plead or prove a hostile work environment based on a few isolated and discrete discriminatory actions.

According to the Court’s opinion, the plaintiff had been initially hired as a server.  His manager told him that he would be considered for promotion if he would “act a little more masculine,” change his spiky hair style and remove his visible body piercings.  While the plaintiff deleted his Facebook status, combed over his hair and removed the piercings, he did not change his Instagram page which pictured his male partner, children or gay hashtags.  Within a couple of months, he received three promotions to the second highest position in the restaurant.   In the meantime, he re-posted his Facebook relationship status.   The plaintiff had a positive relationship with his manager, calling her “the best boss ever” and thanking her for his career.  When he was almost lured away by a competing restaurant, he was given a raise.  When he told the owner about his manager’s prior comments about his needing to act more masculine, the owner promised to “make it right” with him and between him and his manager.

However, the plaintiff’s employment was not without problems.  One of the employees – with blue hair – was receiving customer complaints about blue hair in their food and plaintiff did not handle the complaints well.  He also sometimes overstepped his authority and failed to communicate problems with management.   The final straw came when he refused to attend a mandatory meeting, telling a subordinate that he was going to get out of it because he was not going to pay for childcare for the meeting, which was a waste of time.   He then failed to show up for his shift that same evening.   He had confirmed his schedule the day before and with an employee that same day.   He also failed to return a call from his manager.  He was fired the next day.

While his manager’s comments about his masculinity might have constituted evidence of animus, there was no evidence that the comments resulted in a delay or denial of any promotions or any adverse employment action.  The plaintiff never disguised his sexual orientation on his Instagram account and reposted his gay status on his Facebook page after his first promotion and before his second and third promotions.  The plaintiff’s subjective belief that his manager possessed discriminatory animus was insufficient to survive summary judgment.

In other words, [the plaintiff] was promoted despite his open and obvious noncompliance with the supposed condition on his social media postings. To the extent [he] argues that the fact he was promoted only after he changed his hairstyle from “spiky” to “combed over” is evidence of gender stereotyping, we know of no such stereotype, and [he] fails to identify one.

In all, [he] secured three promotions in eight months, rising from an entry-level server to front-of-house operations manager. All things considered, [his] rapid rise shows that Midland did not delay or deny his promotions because of sex discrimination. No rational trier of fact could find otherwise.

The Court also rejected the plaintiff’s retaliation claim where he alleged that his manager subjected him to “hyper scrutiny” after he informed the owner about her prior comments concerning his sexual orientation.  Each of the instances he identified were grounds for legitimate criticism:  his handling of the blue hair in customer food, exceeding his authority with vendors and employees, bringing the wrong resume to a job interview, etc.   Moreover, more than three months had passed between when he reported her comments and when he was fired, weakening any possible temporal proximity.  The Court described this as “a firm indicator of a lack of a causal link” between his protected activity and the adverse employment action.  Finally, he failed to produce evidence that any employees were similarly situated to his position or misconduct.

In any event, there was no evidence that the employer’s explanation for his termination was pretextual.   The plaintiff admitted that he believed the owner “honestly believed” he missed a mandatory meeting and shift.  His manager did not learn until after the termination that the plaintiff may have believed that his absence had been excused.  “This evidence satisfies the “honest belief rule,” which precludes a finding of pretext when an employer’s nondiscriminatory reason for terminating an employee is later proven false, so long as the employer can show that it honestly believed the reason was true when making the termination decision.”

Finally, the Court agreed that the plaintiff failed to plead or prove a hostile work environment claim with a few discrete and isolated acts of possible discrimination.  This was insufficient when  “a hostile work environment claim requires a plaintiff to demonstrate a “workplace . . . permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”

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

Tuesday, January 18, 2022

Employer's Inadvertent Actions Effectively Ended Workplace Harassment, and Thus, Were Reasonable.

In June, the Sixth Circuit affirmed an employer’s summary judgment on workplace harassment and retaliation claims where the plaintiff had alleged that the employer’s investigation and response to the harassment claims were inadequate and denied her a promotion in retaliation for her complaints.  Doe v. City of Detroit, 3 F.4th 294 (6th Cir. 2021).   The plaintiff had been subjected to anonymous threats by a co-worker.  Although the employer interviewed a suspect following the second incident, it did not interview him following any of the death threats.  The Court affirmed dismissal of the hostile work environment claims because the employer’s response to each incident was reasonable and the final action – in inadvertently suspending and relocating the suspect – was apparently effective, and thus reasonable, in ending the anonymous harassment.  The Court also found no evidence that the plaintiff had been denied a promotion on account of her prior harassment complaints.

According to the Court’s decision, the plaintiff began transitioning about six months after being hired.  Following the plaintiff’s first series of medical procedures, a co-worker submitted complaints that the plaintiff had violated the employer’s dress code.  Although the plaintiff was informed about only the existence of the complaints, she was reassured that her attire was appropriate.  Following the plaintiff’s second series of medical procedures, her office name plate was defaced, which the City immediately rectified.  A few days later, the plaintiff received an anonymous gift bag with sex toys and a handwritten Bible verse about men wearing women’s clothing.  The employer conducted an immediate investigation, interviewed all nearby employees and required handwriting samples from each of them.  The perpetrator was never identified.  The investigation report recommended a few months later that a lock be installed on the plaintiff’s office door, but did not approve the plaintiff’s request for a security camera. 

Five months later, the plaintiff received a typed anonymous death threat.  The employer reported the incident to the police (which refused to investigate) and finally requested a lock for her office door, but refused the security camera, permission to keep her door shut during office hours or to permit her to work from home. A few employees were questioned, but not the individual who had previously filed the dress code complaints.  A few weeks later, another anonymous death threat was made. The City temporarily relocated the plaintiff’s office, installed locks and a security camera and again questioned a few employees, but not the employee who had previously made the dress code complaints.  At that point, the plaintiff suggested that the perpetrator might be that employee.  A few weeks after that, the employer learned that employee had inappropriately accessed the plaintiff’s Facebook page and discussed it with subordinates.  He was given a three-day suspension and his office was relocated onto a different floor from the plaintiff.  There were no further harassing incidents or threats made against the plaintiff.

The plaintiff then complained that her work was being subjected to more criticism, etc.  Her supervisor resigned and suggested someone else to be promoted instead of plaintiff.   The supervisor’s suggestion was not taken, but the decisionmaker promoted a different employee other than the plaintiff. 

The trial court and Sixth Circuit ruled in favor of the employer on the harassment and retaliation claims.   It addressed the City’s response to each incident, rather than evaluating whether the initial response was adequate for the escalation.   While the plaintiff and the alleged perpetrator were both supervisors, neither had authority over the other; they were essentially co-workers.  Thus, the Court evaluated the matter as co-worker harassment.  When workplace harassment is

committed by a coworker, the employer is liable only “if it knew or should have known of the charged sexual harassment and failed to implement prompt and appropriate corrective action . . . To find liability, the employer’s response to a coworker’s harassment must “manifest[] indifference or unreasonableness in light of the facts the employer knew or should have known.” . . .  An employer’s response is generally adequate “if it is ‘reasonably calculated to end the harassment.’” . . . . “The appropriate corrective response will vary according to the severity and persistence of the alleged harassment.” . . . “Steps that would ‘establish a base level of reasonably appropriate corrective action’ may include promptly initiating an investigation[,] . . . ‘speaking with the specific individuals identified’” in the complaint, “following up with the complainant,” and “reporting the harassment to others in management.”

The employer immediately rectified the graffiti and conducted an immediate and thorough investigation following the gift bag incident.   The Court rejected the plaintiff’s argument that the employer’s response was unreasonable (in that no perpetrator was ever identified) because in another case the employer had unreasonably delayed 10 days in conducting an investigation, already knew the identity of the alleged perpetrator and had failed to separate the perpetrator from the victim with an administrative suspension.

“The most significant immediate measure an employer can take in response to a sexual harassment complaint is to launch a prompt investigation to determine whether the complaint is justified.” . . . “By doing so, ‘the employer puts all employees on notice that it takes such allegations seriously and will not tolerate harassment in the workplace.’”

The Court also rejected the plaintiff’s argument that the employer’s actions were unreasonable in delaying the installation of door locks or security cameras following the first two incidents:

“a harassment victim may not dictate an employer’s action against a co-worker.” . . . . While taking these measures would have been reasonable, failing to do so does not render the city “so indifferent to [Doe’s] concerns that it essentially permitted the harassment to continue.”

The employer’s response to the first death threat was also found to be reasonable as the police were contacted within three days and a request was made to install locks on the plaintiff’s office door.  While the plaintiff argued that it was unreasonable to not have then interviewed the employee who had previously complained about her attire, she admits that she never suspected him at this time either and there was no evidence tying him to any of the incidents.

Further, on this record, it was not unreasonable for the city to require Doe to return to the office. Nothing in the record indicates that Doe’s job was capable of remote performance. And the city took steps to address the harassment. Although these steps were ultimately unsuccessful in preventing the final act of harassment—the note on May 22—the city did not “exhibit[] indifference rising to an attitude of permissiveness that amounted to discrimination.”

Finally, the Court found that the City’s response to the final threat was reasonable even though by then the plaintiff had identified a possible suspect and neither the employer nor the police ever interviewed him about any of the death threats.  Rather, it was after this final threat that the City learned about the Facebook incident, suspended the suspect and relocated his office.  After that, the plaintiff suffered no more harassment.  The Court agreed that even inadvertent action by an employer can be effective in ending workplace harassment.

An inadequate investigation may render an employer’s response unreasonable. . . . But the city also temporarily relocated Doe at her request to a different floor until locks and security cameras could be installed. And the city moved Allen to another floor shortly thereafter, which both Doe and Allen assumed had something to do with the Facebook incident. See Harris v. Sodders, No. 07-4398, 2009 WL 331633, at *2 (6th Cir. Feb. 11, 2009) (employer’s actions appropriate in part because “[e]ven though [employer] was unaware of the alleged harassment, his decision to transfer [the harasser] had the inadvertent effect of stopping the harassment”). Doe agrees that there have been no further incidents since May 22, 2017. If Allen was indeed responsible for these incidents, it appears that moving him, disciplining him, and installing locks and cameras effectively ended the harassment. . . . These efforts did not “manifest[] indifference or unreasonableness in light of the facts the employer knew or should have known,” so “we cannot say that the employer has itself committed an act of discrimination.”

Finally, the Court affirmed dismissal of the retaliation claim because there was no evidence that the decisionmaker based his decision in any way on the plaintiff’s protected conduct.  More than five months had passed since her last complaint and the promotion decision.   Her suspicions do no constitute evidence that the promotion decision was tainted or that her supervisor's criticisms were retaliatory.

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.

Tuesday, October 8, 2019

Sixth Circuit Revives Hostile Work Environment Claim Against Local Judge


In August, the federal Court of Appeals affirmed in most part the dismissal of an employment retaliation and harassment complaint filed against five local municipal court judges and a court employee on the grounds that the allegations were too vague to support an actionable claim, but reversed the dismissal of the hostile work environment allegations made against one of the judges because sufficiently specific allegations had been made against him.  Boxill v. O’Grady, No. 18-3385 (6th Cir. Aug 16, 2019).  To survive dismissal at this early stage, the complaint must state more than conclusory allegations against the defendant as a group and must allege that any alleged retaliation was based on personal knowledge of the protected conduct.


According to the Court’s opinion, the plaintiff alleged that the defendants formed a conspiracy in 2007 to intimidate complaining female employees, but that she did not suffer any abusive treatment until one of the judges made hostile comments to her in 2011 which she indicated were racist and sexist.  She claimed to have reported his “harassment” to several of the defendants through 2013, but no action was taken and in 2013 one of her male subordinates was given a substantial raise (that impliedly she did not similarly receive).  


In 2014, the plaintiff alleged that another judge took up her cause and drafted a letter expressing concerns with the behavior of the judge who she claimed was behaving inappropriately to her.   Her supervisor revised the letter, which indicated that the judge’s behavior could result in litigation and lead to potential liability for hostile work environment.  Importantly, there was no allegation that the allegedly hostile judge knew about the letter or that the plaintiff was the source of the allegations.  Nonetheless, a week later, she was demoted and she alleged that the allegedly hostile judge recruited other judges to monitor her and her staff and they began bypassing her to go directly to her staff.  She resigned in 2014.  She filed suit seeking relief under §§ 1981 and 1983 for hostile work environment and retaliation, but not Title VII or state law.


With respect to her retaliation claims (under the First Amendment and §1981/1983), the Court found that her complaints of discrimination were matters of public concern, although it did not address the issue that her complaints were about her own personal situation.  It also found that her demotion and reduction in responsibilities would deter a reasonable person from exercising their protected rights.  However, her claims against four of the defendants failed because she failed to make any allegations that they were aware of her complaints or individually took any adverse action against her.  “Summary reference to a single, five-headed “Defendants” does not support a reasonable inference that each Defendant is liable for retaliation.”  While her allegations against the fifth judge were more detailed about his adverse actions against her, she never alleged that he was aware of her complaints against him.  Accordingly, the retaliation claims were properly dismissed.


With respect to her §1983 civil conspiracy claims, she similarly failed to make any individual allegations against four of the defendants that they participated in the alleged conspiracy, shared a conspiratorial objective, or committed any specific acts to further the alleged conspiracy.  Her reliance on the awareness of two of the defendants of the draft letter and revising the letter was misplaced because “letter’s open recognition of concerns about” the allegedly hostile judge  “undercut the claim that [they]  worked to conceal complaints against him.” While her complaints against the allegedly hostile judge were specific, she failed to allege that he knew about any of her complaints against him. He “could not have conspired to retaliate against [her] on the basis of complaints he knew nothing about.”


With respect to her hostile work environment claim, she again failed to allege that four of the defendants knew anything about her complaints and failed to take action.  On the contrary, the fact that the letter about the fifth judge’s behavior was being circulated and discussed, show that they were taking proactive steps to address the situation.  Nonetheless, her “vague reference to the Defendants’ “facilitati[on]” of “a continuing hostile work environment”  . . .  is not enough to state a plausible claim against any of these Defendants.  Nor is [her] conclusory allegation that [the fifth judge] was “hostile and intimidating to [her] personally.”  Accordingly, those allegations against four of the defendants were similarly dismissed.


The Court reversed dismissal of the hostile work environment claim against the fifth judge because the allegations against him were sufficient to proceed to the discovery phase of the litigation.  The plaintiff alleged “that shortly after his election to the bench in 2011, ‘[he] began making hostile comments’ that ‘mirrored sexist and racist allusions [he] had directed at [her] when he had been Bailiff’ at the same courthouse in the past.”  She had complained that he was interfering with her ability to work and the other judges recognized that his behavior had become enough of a problem that they felt the need to document their concerns.

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.

Thursday, February 8, 2018

Ohio Appeals Court Rejects Sexual Harassment and Retaliation Claims Based on Speculation and Gender-Neutral Policy

Last week, the Ohio Court of Appeals in Summit County affirmed an employer’s summary judgment on a former employee’s claims for sexual harassment and retaliation.   Messer v. Summa Health Sys., 2018-Ohio-372.  In particular, the plaintiff claimed that she had been subjected to a hostile work environment when the employer expected her (and all other radiology employees) to change in a unisex locker room (or the locker room bathroom) and that she was terminated after only one month of employment for objecting.  The court found that she could not identify how she was treated differently or harassed on account of her sex when the policy was gender neutral and the locker room and bathroom could be locked.  Further, it refused to impute knowledge of her discussion about the locker room issue with one supervisor to the manager who decided to terminate her for poor performance, finding the plaintiff’s retaliation argument to be nothing more than speculation.
According to the Court’s opinion, both the locker room and bathroom could be locked. The plaintiff did not comply with the policy and either wore her scrubs home or changed in a public restroom.   The plaintiff claimed to have suffered two incidents in the locker room: One when she inadvertently walked in on a male who was changing and once when someone almost walked in on her (although she never knew the gender of that person).   Although she claimed to have reported these incidents to the same supervisor and explained why she was uncomfortable, she never submitted a written complaint about them.  After being counselled about her job performance and gaps of knowledge, she was then counseled by her supervisor about not complying with the policy requiring her to change in the locker room.
On the day before her termination, she requested to leave early and was asked whether she had completed her completed online courses.  She responded that she only had two courses left to complete.  In fact, she still had five left to complete because she had not completed the quizzes for three of the courses (even though she claimed that she had listened to the lectures for those three modules).  She completed the quizzes the next morning.  That same day, a patient suffered a hematoma, which her manager indicated was the plaintiff’s fault while the plaintiff indicated it was because she had not been provided with the proper equipment.  Finally, there was a discrepancy with her resume because the plaintiff omitted a relevant medical employer, while including non-medical positions.  While she mentioned in her interview that she had worked a temporary job, she did not disclose the employer’s name.  When confronted, she indicated that she did not think that the position had been relevant (even though she had listed prior accounting jobs).  At the end of her shift, the manager terminated her employment. 
To prevail on a sexual harassment or discrimination claim, “[a] female plaintiff must show that she was treated differently or with greater hostility because she is  a woman.”  While the plaintiff argued that the mandatory use of a unisex locker room constituted a hostile work environment to women because women have a greater expectation of privacy, the court disagreed.   For one thing, the unisex locker room and its bathroom could be locked when privacy was desired.   The plaintiff also could not cite any precedent where gender-neutral rules were found to be discriminatory.  Accordingly, the plaintiff could not show that she was treated differently on account of her gender.
As for her retaliation claim, ““[t]he decision[]maker’s knowledge of the protected activity is an essential element of the prima facie case of unlawful retaliation.”    . . . An employer cannot make a retaliatory business decision when it is not aware of the protected activity at the time the decision was made.”   While a plaintiff can prove the requisite knowledge with circumstantial evidence, such “evidence can support a reasonable inference if it is comprised of  ‘specific facts’ and not merely ‘conspiratorial theories,’ ‘flights of fancy, speculations, hunches, intuitions, or rumors.’”  In this case, while the plaintiff contended that she had told her supervisor about her locker room objections at least twice, she never asserted that she had ever shared those concerns with the manager who made the decision to terminate her.  Further, she proffered no evidence that this manager had ever learned of her concerns elsewhere, although she had been told about the plaintiff’s violation of the policy.   Finally, even though the plaintiff told the manager in her termination meeting that she was not comfortable changing in the unisex locker room, she never explained why so that her concern might have been arguably protected conduct.
The court refused to consider the cat’s paw theory which was asserted for the first time on appeal.
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.

Monday, January 29, 2018

When Saying #MeToo Isn’t Enough: Dayton Appellate Court Affirms Dismissal of Sexual Harassment Lawsuit


Last month, the Ohio Court of Appeals in Montgomery County affirmed the dismissal of sexual harassment and retaliation claims in a lengthy opinion.  Diller v. Miami Valley Hospital, 2017-Ohio-9051  (12-15-17). The Court concluded that while the plaintiff had established that her manager’s conduct was unwelcome, she had not proven that it was based on her sex or was severe or pervasive.   Isolated offensive utterances that are not threatening, frequent or intimidating and do not interfere with the plaintiff’s work performance are legally insufficient to establish a hostile work environment claim.   Finally, her self-directed investigation into her boss wasting time was not protected activity because it was neither discriminatory nor unlawful.  Similarly, complaining about his pompous behavior was not protected by sexual discrimination laws.   Therefore, terminating her in connection with her conduct during her self-directed investigation was not unlawful.


According to the Court’s opinion, the plaintiff security officer alleged in her complaint that the “true” reason she had been fired was in retaliation for complaining about sexual harassment from her new manager. Among other things, the plaintiff had alleged that her boss had made comments about pulling up her “big girl panties,” raised his eyebrows when greeting her, had once commented while she was helping him with his computer that there is always a good woman behind a good man, and had been demeaning to her and her male co-workers.  In addition to his general disrespectful comments to the entire department, his comment about good women being behind good men had made her uncomfortable.  While she had initially made the “panties” comment, she did not expect him to repeat it back to her so often afterwards and eventually told him that it made her uncomfortable.   She had been directed by HR to report back if there were any other problems.   However, the court found that she agreed that her boss was demeaning to everyone, not just women or her.  Further, the “panties” comment was merely him repeating her description of her need to grow up.  Finally, the “googly” eyes was too ambiguous to construe as sexual.    

The employer pointed out that she had been fired after moving security cameras so that she could spy on her boss and that this had placed staff at risk.  When she was initially confronted and again in her deposition, she denied that she had been investigating possible sexual harassment by her boss, but then then changed her explanation in her complaint after being fired.   She also claimed that she had received an anonymous message – that she did not report to anyone else --  that her boss was spending too much time at the lobby information desk, so she moved the cameras from the lobby entrance to focus instead on the desk even though the employer had trained the cameras on the entrance to protect staff from vagrants in the area.   Much of the opinion is spent on the discrepancies between the different versions of her allegations.  At the end of the day, however, the Court found that her allegations of sexual harassment were not sufficiently severe or pervasive to be actionable. 

In evaluating hostile work environment claims, “the severity and pervasiveness are to be looked at together so that ‘deficiencies in the strength of one factor may be made up by the strength in the other.’  . . .  [T]he harassing conduct ‘must be severe or pervasive enough to create both an objectively hostile or abusive work environment – one that a reasonable person would find hostile or abusive – and a subjectively hostile work environment – one that the victim perceived to be hostile or abusive.’” 

As for her retaliation claim, the plaintiff claimed that she had frequently moved other cameras as part of her job duties and not been fired or even counselled.  The opinion does not dispute this.   Nonetheless, she also admitted to providing incorrect information to Human Resources during its subsequent investigation about her role in moving the cameras and why it was done.   The court concluded that the plaintiff had not engaged in any protected conduct because the issues that she had reported to Human Resources had not related to sexual harassment, but, as discussed, involved her manager’s generally “pompous” attitude and the one “good woman” comment.   Further, her conduct in investigating the anonymous complaint about her boss spending too much time at the information desk was not protected either since she had specifically denied that she was investigating possible sexual harassment.   The court noted that the employer had argued that a “supervisor’s wasting time at work is neither discriminatory nor unlawful.”

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.

Monday, September 19, 2016

Sixth Circuit Rejects Sexual Harassment Claim When Comments About Sex Were Just Unprofessional

Last week, a divided Sixth Circuit affirmed an employer’s summary judgment in a sexual harassment case where much of the conduct underlying the claim may have stated an actionable retaliation claim if the plaintiff had asserted one.  Graves v. Dayton Gastroenterology, Inc. No. 15-4049 (6th Cir. Sept. 13, 2016).  The plaintiff alleged that a co-worker texted her on vacation encouraging her to have sex with her husband.  He apologized after she complained to the CEO, but she refused to meet with him or have any non-work related conversation with him.  He then became angry, began treating her rudely and, when he became her supervisor, denied her time off during lunch breaks, etc.  She found his treatment unbearable and submitted her resignation less than two months later.  The Court found that his text messages were not gender-based or anti-female and that, even if they arguably were, they were not severe or pervasive enough to constitute harassment.

According to the Court’s opinion, the plaintiff had been the lead nurse, but requested to rescind her management responsibilities.  A few weeks before one of her co-workers took over as the lead nurse in February, she took a vacation in January and texted that same co-worker that she loved being on vacation and had done nothing all week.  He responded that she should enjoy herself and suggested that she have fun and wild sex.  She claimed to have been offended, but said nothing.  The following week he texted her: “You and your husband lay out a wonderful dinner an [sic] have wild sex on the table!!!!! I do think about sex all the time. I [sic] just not getting it.”  After she complained to the CEO, he apologized and sought to discuss it with her.  He became angry when she would not speak with him and began treating her rudely.  Over the next two months, he refused to answer questions, denied her lunch breaks, denied her requested days off, gave her difficult assignments, and threw a chart at her.  He attributed her treatment to her complaint about him and stated that she would be finding out what hell is like. She submitted her two-month notice of resignation at the end of March and later brought suit for sexual hostile work environment, but not for retaliation.

First, the Court found that the text messages were not gender-related:

“To be actionable, the harassment must consist of more than words that simply have sexual content or connotations.” . . . . “The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.”  . . . This typically includes “explicit or implicit proposals of sexual activity,” id., as well as “non-sexual conduct” that evinces ‘anti-female animus.’”  . . . We have none of that here. There is no suggestion in the record that [he] or any other  . . .  employee expressed an anti-female animus toward [her]. There is no evidence in the record of any other sexual statements, any physical sexual harassment, or any use of derogatory language by [him]. [She] does not allege, for example, that [he] asked her to have sex with him, touched her or threatened to touch her, made any comments about her body, used language derogatory to women, or treated any of the other women in the office inappropriately.   Moreover, [she] expressly denied that [he] “ever request[ed] any sort of sexual favor from [her].”  She even admitted that the text messages were “inappropriate and unprofessional no matter who received [them] . . . , whether it was . . . a man or another woman.”

In addition, she admitted that his rude conduct towards her was not based on her gender, but was based on his anger at her reporting of the text messages to the CEO.  Accordingly, his gender-neutral misconduct could not be attributed to her gender either.

Second, the Court found that his behavior was not severe or pervasive enough to constitute a hostile work environment.  The two text messages were isolated events.  The remaining incidents might have supported a successful retaliation claim, but the Court refused to stretch the law governing sexual discrimination to include gender-neutral acts that are otherwise only actionable as a retaliation claim (which she did not bring despite the opportunity to do so).

The dissent found that there was enough evidence presented both as to whether the conduct was gender related and severe and pervasive.

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.

Tuesday, March 29, 2016

Ohio Appeals Court Denies Unemployment to Employee Claiming Continued Harassment

Earlier this month, the Franklin County Court of Appeals unanimously affirmed the denial of unemployment compensation to an employee who resigned following her second complaint about her supervisor sexually harassing her.  Loughman v. Ohio Dept. of Pub. Safety, 2016-Ohio-1086.   Within a few months of being hired, the claimant complained about her supervisor sexually harassing her and he was disciplined following an investigation.   She returned to working for him and complained six months later that the harassment continued.  She was transferred into another position pending the investigation and offered four other possible positions in different sections (away from her former supervisor).   Plaintiff abruptly resigned her position a week later and filed for unemployment compensation on the grounds that she had been subjected to intolerable conditions when the harassment did not stop after her first complaint.  The Court  concluded that the employee’s resignation was unjustified under the circumstances because her second complaint was still under investigation and she had been immediately removed from the allegedly harassing situation once she made her second complaint.

In order to show that an employee was justified in resigning, the employee must first bring the intolerable situation to the employer’s attention in order to give the employer a realistic opportunity to cure the situation before the employee resigns.   If the employer fails to correct the situation, the employee may be justified in resigning and need not indefinitely subject herself to a hostile work environment.  In this case, the employee failed to explain how the employer’s discipline of the harassing supervisor following her initial complaint was insufficient.  She did not raise the issue again for six months and never alleged that the employer was aware before then that the harassment had continued.
She also could not show that the employer’s response to her second complaint was insufficient because she was immediately removed from the harassing situation, offered another position and began a second investigation (which had not yet concluded at the time she resigned).

The Court also refused to excuse the employee of the obligation to notify it of a medical condition which contributed to her resignation.

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.

Thursday, February 18, 2016

Sixth Circuit Affirms $300K Jury Verdict in Same Sex Hostile Work Environment Case Despite Employer Taking Disciplinary Action within a Few Weeks

Last week, the Sixth Circuit affirmed a $300K jury verdict on a same-sex hostile work environment claim.  Smith v. Rock-Tenn Services, Inc. No. 15-5534 (6th Cir. 2-10-16).   After the district court had granted summary judgment to the employer on the retaliation and constructive discharge claims, the jury trial focused on the male plaintiff’s claim of offensive touching by a co-worker, the employer’s slow response to his complaint, the employer’s failure to consult the co-worker’s personnel file to discover evidence of prior similar complaints and disciplinary action, and its failure to immediately separate the victim from the harasser, and otherwise ineffectively respond to the plaintiff’s concerns.  Although the plaintiff only had three interactions with the harasser, he and management were aware of other similar incidents.  The employer delayed 10 days to initiate an informal investigation and only suspended the harasser, despite threatening to fire him just a few months earlier for engaging in similar misconduct.  The decisionmaker had not been informed about, and did not consult his personnel file concerning, prior disciplinary actions or similar incidents.  Further, although the employer took disciplinary action within a few weeks, it never separated the victim from the harasser, which so distressed the plaintiff that he left and never returned to work.  The Court found that the jury was reasonable in finding harassment to exist and that the employer’s response was inadequate under the circumstances.

According to the Court’s opinion, the plaintiff received the employer’s employee handbook and sexual harassment policy during his orientation shortly after he was hired in August 2010.  The employer’s policy encouraged employees to attempt to work matters out between themselves before involving management.  In December of 2011, plaintiff observed the harasser grab a co-worker’s buttocks. A few months later, he then slapped plaintiff’s bottom when he walked by, causing the plaintiff to point at him and tell him to keep his hands off. 
The following week, the harasser grabbed the plaintiff’s bottom so hard that it hurt, which resulted in the plaintiff grabbing his harm and telling him that if he didn’t stop, someone would get hurt.  Plaintiff did not report either incident to management.  In early June, while the plaintiff was bent over picking up boxes, the harasser hunched over him and engaged in grinding.  This resulted in the plaintiff grabbing him by the throat and sharing a few choice words.  The harasser later apologized, but the plaintiff was so upset that he went home.
This final incident was brought to the attention of a few co-workers, one of whom told the plant superintendent.  The plaintiff told his female supervisor on the following Monday and learned that this had not been an isolated incident.  The plant superintendent questioned the plaintiff about it that Monday and said that nothing would be done until the operations manager returned from vacation on Friday. 

The plaintiff was sent back to the same work area as the harasser.   By this time, the plaintiff was so upset that he kept making mistakes in his work.  When he and the harasser were sent together for a hearing test, the plaintiff had become very angry.  Even though there were no other incidents with the harasser, the plaintiff suffered an anxiety attack within 10 days of the last incident.  He then requested medical leave to seek counselling from the emotional distress he suffered from the unaddressed harassment.   His request was granted.

Upon receiving the request for medical leave – 10 days after the incident had been reported, the operations manager spoke with a few employees and supervisors about the incident, but no interview notes or witness statements were taken.  The entire investigation was reflected on a single page of handwritten notes.  The harasser claimed that the plaintiff had backed into him and there were no other eyewitnesses.   There were some indications that similar incidents had happened before, but no follow up interviews were conducted. 
Although the superintendent, supervisor and human resources recommended that the harasser be terminated, the employer’s general manager only suspended him for two days.  This was supposedly without pay, but the harasser testified that he was paid.   The General Manager later admitted that he had not sought or considered the harasser’s prior disciplinary history or similar incidents. 
In fact, the superintendent and operations manager involved in this investigation were aware that the harasser had been warned in writing in March 2011 not to touch other employees or he would be terminated. He had touched a male co-worker standing at a urinal and was written up for harassment-horseplay.  Again, no witness statements had been taken.  The harassment policy had been reviewed with the harasser and the documentation had been placed in his personnel file. Human Resources had also been involved in an undocumented similar incident.    Yet, no one told the General Manager, who was in charge of disciplinary actions.

The plaintiff never returned to work and spent the next 18 months taking medication for anxiety and insomnia.  After exhausting his short-term disability, he was diagnosed with PTSD.  The harasser was not fired until July 2014 after he admitted during his deposition to mooning and/or touching other men in the workplace.   All of his misconduct had been directed against men.  There was apparently no evidence that he had ever been inappropriate with a female employee.

While the employer attempted to argue that the harasser’s conduct had simply been horseplay, the plaintiff convinced the jury that it was harassment by showing that only men were exposed to offensive touching.  “[T]he jury apparently found that pinching and slapping someone on the buttocks or grinding one’s pelvis into another’s behind goes far beyond horseplay.”  The Court also rejected the employer’s argument that the plaintiff essentially worked in a gender segregated department (rather than a mixed-sex environment) because 30% of the workforce were women (including the plaintiff’s supervisor) and women passed through the department regularly.  The Court also refused to require the plaintiff to prove more than the absence of offensive conduct towards women in order to prevail on a same-sex harassment claim.  

The Court also rejected the employer’s arguments that the harasser’s three interactions with the plaintiff were not severe or pervasive enough to constitute a hostile work environment because the plaintiff’s case could also rely on other incidents by the harasser which the plaintiff observed or learned about during his employment.  In addition, offensive touching is considered to be more severe than verbal insults or comments.  “’[W]hether harassment was so severe and pervasive as to constitute a hostile work environment to be ‘quintessentially a question of fact.’”  In particular, the Court found that the jury’s conclusion was not unreasonable based on the evidence presented.
 
The Court also found the employer’s response to be inadequate because there was documentation of recent prior similar incidents and disciplinary actions involving the harasser, but that information was not shared with decisionmakers or followed-up in any deliberate fashion.  The employer’s policy of taking witness statements and preparing a formal report were not followed.  

To impose liability on an employer for the harassing conduct of a plaintiff’s co-worker, a “plaintiff must show that the employer’s response to the plaintiff’s complaints ‘manifest[ed] indifference or unreasonableness in light of the facts the employer knew or should have known.’”  . . . A plaintiff must therefore show that the employer “knew or should have known of the harassment” and “failed to take prompt and appropriate corrective action.”  “Generally, a response is adequate if it is reasonably calculated to end the harassment.”  . . . Appropriate steps “may include promptly initiating an investigation.”  . . . Even separating the harasser and victim immediately may not be enough without further action on the employer’s part.

Although the employer argued that the steps it took were clearly prompt and appropriate under the circumstances, the employer “fails to grasp that what it failed to do is just as important.”

In this case, a reasonable jury could have concluded that Defendant’s total inaction for ten days, where Defendant knew that Leonard had touched Plaintiff, and had told Leonard that further complaints would result in termination, was unreasonable.  Defendant did not separate the two men, suspend Leonard pending an investigation, or initiate its investigation in a timely manner; a reasonable jury could find that the failure to take any of these steps or others rendered its response neither prompt nor appropriate in light of what it knew or should have known regarding Leonard’s prior misconduct.

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.

Tuesday, February 9, 2016

Sixth Circuit Affirms Dismissal of Race Discrimination Claims Where Newly Hired Co-Workers Were Paid More and Had More Job Related Education and Experience

Last week, the Sixth Circuit affirmed an employer’s summary judgment on race discrimination claims challenging common pay and promotional practices. Woods v. FacilitySource LLC, No. 15-3138 (6th Cir. 2-3-16).  The Court also clarified what constitutes a Charge of Discrimination.  In affirming dismissal of the claims, the Court found that it was not discriminatory for the employer to pay new hires – with higher and more job-related college education – more than long-time employees without a college education or with only a fine arts degree.   The Court also recognized that when an employer fails to post promotional openings for Senior Account Managers, a plaintiff need not prove that he applied for a promotion in order to challenge promotions that were given to those outside his protected class.  Nonetheless, the Court found that individuals with higher levels and/or more job-related education and prior job experience were more qualified for those promotions than the plaintiffs.  Finally, while the Court found that a plaintiff – who was the only African-American manager - identified inappropriate racial comments and racial insensitivity in the workplace, it was not severe or pervasive enough to constitute a hostile work environment.   

According to the Court’s opinion, one of the plaintiffs was the employer’s only African-American supervisor and the other plaintiff was his domestic partner who alleged that he was discriminated against because of his association with the other plaintiff.  They had been hired in 2005 at approximately $10/hour, had been promoted to the positions of Account Manager and were making approximately $42,000/year at the time that they filed their Charges.  Of the 26 other Account Managers, all but one was hired after them, 12 were hired after 2010 and most were paid significantly more than them, including 11 of the newly hired managers.   The employer defended the higher salaries paid to the other Account Managers on the basis that the market after 2010 was competitive and that they needed to increase the level of college education and prior management experience required for the positions and the starting salaries.  While the plaintiffs conceded the fairness of paying more for greater education and experience, they felt that their salaries should have been increased as well to reflect their greater seniority with the employer.   During pre-trial discovery, the employer discovered that one of the plaintiffs had made misrepresentations on his job application about having a high school diploma (which he lacked) and voluntarily leaving a job from which he was actually involuntarily terminated (when he had similarly lied on a job application).
Charge of Discrimination.  The plaintiffs sent notarized letters (signed under penalty of perjury) to the EEOC and OCRC and completed intake questionnaires, but never signed or dated official Charge of Discrimination forms.  Instead, they requested and received right-to-sue letters from the EEOC and filed suit.  The district court found that they exhausted their administrative remedies because, among other things, the EEOC treated their letters and questionnaires as Charges, but the EEOC filed an amicus brief indicating that this factor was irrelevant. The Court agreed that the EEOC’s treatment of the letters and questionnaires was irrelevant, but still found that the plaintiffs had exhausted their administrative remedies because the plaintiffs had filed Charges giving notice of their allegations and requesting the agencies to take action.
Pay Discrimination.  The employer conceded that the plaintiffs had alleged a prima facie case because they were paid less than all of their fellow Account Managers.  On appeal, the employer contended that the other Account Managers were more qualified than the plaintiffs and were paid more on account of a factor other than race.  In particular, the employer increased the starting salary for the position in 2010 to reflect increased requirements for college and job-related prior experience.  This resulted in virtually all of the new hires being paid more than most of the existing Account Managers, including plaintiffs.  The Court found this to be a non-discriminatory reason: The plaintiffs’

belief that seniority should have been given equal or greater weight than educational and experiential accomplishments does not mean that the defendants were guilty of wage discrimination simply because they viewed other criteria as more germane to their salary-determination decision.

As for the other Account Managers hired before 2010 who were also paid more than the plaintiffs, the Court found that they similarly possessed greater education (i.e., college degrees) and more relevant job experience than the plaintiffs.  One of the plaintiffs did not even have a high school degree and the other had a fine arts degree, unlike business, marketing or communications majors who had higher salaries.   In other words, the court found that a fine arts degree did not justify the same amount of salary paid to co-workers with a marketing degree or business classes:

Clearly, skills gained from such a [fine arts] degree were not as immediately transferrable to Lorenzo’s job at FacilitySource as were those from the degrees obtained and courses taken by other individuals in management and business related subjects.

Promotions.  The employer promoted a few Account Managers in to Senior Account Manager positions.  Even though the plaintiffs did not apply for these promotions, the Court found this was unnecessary in light of the employer’s failure to post the positions:

[I]n failure to promote cases a plaintiff does not have to establish that he applied for and was considered for the promotion when the employer does not notify its employees of the available promotion or does not provide a formal mechanism for expressing interest in the promotion. Instead, the company is held to a duty to consider all those who might reasonably be interested in a promotion were its availability made generally known.

Nonetheless, the plaintiffs could not prevail because one of them lacked the requisite college degree and the other was less qualified than the individuals ultimately promoted due to their more relevant college courses.
Hostile Work Environment.  The plaintiff was able to identify race-based comments and that clients were rarely introduced to him during walk-arounds unless they were also African-American or specifically requested to meet with him. “When directed toward or used to describe an African-American employee, especially the sole African-American employee in a management position, such comments and conduct must be considered both inappropriate and racially insensitive.”  However, the plaintiff never explained how this conduct was so offensive that it interfered with his work.   He was ultimately fired because of dishonesty on his job application, not because of his job performance.
 

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.