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.4^th 294 (6^th 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.

Ohio Appeals Court Reverses Employer’s Summary Judgment on Retaliation Claim Based on Workplace Investigation

 

Earlier this week, a unanimous Franklin County Court of Appeals affirmed summary judgment on a discrimination claim, but reversed summary judgment on a retaliation claim, finding sufficient evidence for a trial on whether the plaintiff was subjected to a workplace investigation and potential termination in retaliation for a Charge of Discrimination he had filed two months earlier.   Moody v. Ohio Dept. of Mental Health & Addiction Servs., 2021-Ohio-4578. The plaintiff alleged that he was subjected to discrimination when he was given a paid three-day suspension for being hours late to work due to a misunderstanding about the work schedule.   During a later, unrelated investigation, the plaintiff alleged that co-workers had mistreated patients, but he had never filed formal incident reports about any of those incidents.  He was then investigated for failing to file incident reports and threatened with a five-day suspension or termination.  He resigned and filed suit.  The Court found that a paid three-day disciplinary suspension which did not affect the plaintiff’s compensation, status, or other terms and conditions of employment could not constitute a material adverse employment action for purposes of employment discrimination.   However, subjecting the plaintiff to a workplace investigation two months later could constitute an actionable retaliatory action and was sufficiently close in time to his protected conduct of filing a Charge of Discrimination.  The Court also found sufficient evidence of pretext when the employer’s explanation was challenged by an independent witness who agreed with the plaintiff that there was no mandatory duty to file a formal incident report for relatively minor infractions which could be adequately resolved by reporting them to the Charge Nurse.

According to the Court’s opinion, the plaintiff received disciplinary action after engaging in horseplay at work.  He was directed to read some materials and prepare a performance improvement plan within a week, which he failed to do.  He was then given a written reprimand for failing to complete the assignment.    A few months later, he was given a one-day paid suspension for creating a workplace disturbance.  He then transferred to a new supervisor and had no further issues for almost three years.  However, he was then more than two hours late to work after relying on an earlier draft of the work schedule.  The next step in the progressive disciplinary policy was a paid three-day suspension.  Incorrectly believing that the bargaining agreement provided that his prior disciplinary actions dropped off after two years (instead of three years), he filed a Charge of Discrimination with the Ohio Civil Rights Commission, which was dismissed for lack of probable cause.  Two months later, he was interviewed as part of unrelated investigations of two co-workers.  He alleged during those investigations that the co-workers had been abusive towards patients.  Because he had never filed incident reports concerning any of those situations, he was then investigated and subjected to disciplinary action, including termination.  He resigned and filed suit.  The Court of Claims granted summary judgment to the employer.

A unanimous Court of Appeals affirmed in part and reversed in part.   The plaintiff failed to produce evidence of different treatment concerning most of the challenged employment actions.  His bare assertions that other employees, for instance, engaged in horseplay without disciplinary action was insufficient to create a material dispute of fact necessary to avoid summary judgment.   However, he did produce documentary evidence and a witness affidavit that a few other co-workers were late to work under similar circumstances and only received informal counseling, instead of formal disciplinary action.  Nonetheless, the Court concluded that the plaintiff could not prevail on a discriminatory treatment claim because his paid suspension had not altered his compensation, employment status or other terms or conditions of his employment.

"[A]n adverse employment action 'is a materially adverse change in the terms and conditions of the plaintiff's employment.' . . . . Whether a particular action constitutes an adverse employment action is determined on a case-by-case basis.  . . . "Factors to consider in determining whether an employment action was materially adverse include termination, demotion evidenced by a decrease in salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities or other indices unique to a particular situation."  . . . By contrast, " 'actions that result in mere inconvenience or an alteration of job responsibilities are not disruptive enough to constitute adverse employment actions.' “  . . . .  [citations omitted]

While terminations, failure to renew a contract, and unpaid suspensions can constate material adverse employment actions, “the Sixth Circuit has held that a paid suspension generally does not constitute an adverse employment action.”

We have held that where an employer is not required to use progressive discipline prior to terminating an employee, the failure to use progressive discipline does not necessarily establish a pretext for discrimination. . . . .Conversely, in this case, [the employer’s] application of its progressive discipline system when disciplining [the plaintiff] for being late to work does not, in itself, constitute an adverse employment action. . .

In this case, [he] did not lose pay during the three-day working suspension. Moreover, his hourly wage and seniority were not affected by the three-day working suspension. Unlike the plaintiff in Arnold, [he] has not demonstrated any "diminished material responsibilities" resulting from the suspension. Arnold. at 532. Thus, like the plaintiff in Presley, [he] has failed to demonstrate the three-day working suspension had any long-term impact on the terms or conditions of his employment. See Presley at 514. Even construing the evidence most favorably to [plaintiff], we conclude he fails to demonstrate the three-day working suspension imposed in August 2018 was an adverse employment action purposes of his race and national origin discrimination claims. Therefore, [he] has failed to establish a prima facie case of race and national origin discrimination.

However, the Court found sufficient evidence to support the plaintiff’s claim of retaliation.

In the context of a retaliation claim, a plaintiff must show an alleged adverse employment action "might well have dissuaded a reasonable worker from making or supporting a charge of discrimination."  . . . see also Greer-Burger v. Temesi, 116 Ohio St.3d 324, 2007- Ohio-6442, ¶ 13, fn. 2 (noting that under R.C. 4112.02(I) "the adverse action need not be employment-related, so the filing of a lawsuit or a counterclaim can constitute an adverse employment action in circumstances such as those in this case"); Arnold at 536-37, quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006) ("Demonstrating the third prima facie element in a Title VII retaliation case, an adverse employment action, is less onerous than in the discrimination context in that it 'is not limited to discriminatory actions that affect the terms and conditions of employment.' ").

We have held that denial of consideration for promotion, exclusion from meetings, and being singled out for discipline were sufficient to demonstrate adverse employment action for a retaliation claim. Peterson v. Buckeye Steel Casings, 133 Ohio App.3d 715, 728 (10th Dist.1999). The Sixth Circuit has held that an investigation of alleged research misconduct by a university professor could constitute an adverse employment action for purposes of a Title VII retaliation claim.  . . . Similarly, the Sixth Circuit has noted that internal investigations, loss of remote parking privileges, a requirement to complete time sheets, and a suspension and transfer could constitute adverse employment actions to demonstrate a prima facie case of retaliation. . . .

[The plaintiff] claims the December 2018 investigations were an adverse employment action for purposes of his retaliation claim. During the investigations, [he] was subjected to multiple police interviews. Based on the December 2018 investigations, [he] was charged with failing to report violations and, after a pre-disciplinary meeting, a human relations officer found there was just cause to discipline [him]. Under ODMHAS's progressive discipline system, [he] potentially faced a five-day working suspension or termination. Construing this evidence most favorably to [him], an investigation and potential discipline could have a chilling effect on an employee's willingness to oppose workplace discipline and "might well have dissuaded a reasonable worker from making or supporting a charge of discrimination."  . . . Therefore, [he] has demonstrated that he was subjected to an adverse employment action for purposes of his retaliation claim.

The Court found that the plaintiff also presented sufficient evidence to show that his protected conduct (in filing the Charge) was the cause of the workplace investigation because the investigation was conducted less than three months after his protected activity. 

We have held that "close temporal proximity between the employer's knowledge of the protected activity and the adverse employment action may constitute evidence of a causal connection for purposes of satisfying a prima facie case of retaliation."  . . .  Although we have noted that proximity alone does not necessarily imply causation, we have held that an adverse employment action occurring two months after a protected activity was sufficient to establish a prima facie case of retaliation.  . . . Similarly, the Sixth Circuit has held that a gap of three months between an employer learning of a protected activity and an adverse employment action may permit inference of a causal connection.  . . . As noted above, in this case the record does not establish exactly when [the employer] learned of the OCRC/EEOC complaint, but it should have been advised of the EEOC complaint by October 2018. The December 2018 investigations began in early December 2018, little more than two months later. Thus, consistent with our decision in Hartman and construing the evidence most favorably to [the plaintiff], the approximately two-month gap between the protected activity and the adverse employment action in this case would permit a finding of causation.

While the employer articulated a legitimate and non-discriminatory reason for investigating the plaintiff, the Court also found that he had presented sufficient evidence to question whether that explanation was pretextual for retaliation.   The plaintiff contended that filing incident reports was not mandatory for minor infractions and was able to cite to a statement made by a Registered Nurse during the investigation confirming his understanding.

[The plaintiff] effectively argues [the employer’s] proffered reason was insufficient to explain the December 2018 investigations. He asserts [his co-workers] had some discretion regarding when to file incident reports because not every infraction merited a formal incident report. [He] claims incident reports were an elevated form of reporting that automatically triggered a police investigation, whereas reporting matters to the charge nurse allowed them to be resolved informally. [He] asserted he "generally reported workplace problems to the Charge Nurse, rather than automatically escalate all issues into Incident Reports and police investigations" and that he "only filed Incident Reports for the most egregious conduct." . . . [He] further claimed this "was the way most such incidents were handled by my fellow TPWs."  . . . In addition to his personal understanding of appropriate reporting practices, [he] cites a statement made by a registered nurse during the December 2018 investigations. The nurse told the investigator that if a TPW witnessed a patient violation she would advise the TPW to tell the registered nurse on duty about it. Construing this evidence most favorably to [the plaintiff], it creates a genuine issue of material fact regarding the incident reporting practices  . . . and, by extension, whether [the employer’s] justification for the December 2018 investigation (i.e., that it was necessary because [he] violated policy by failing to report workplace incidents) was merely a pretext for retaliation.

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 Rejects Employer's Independent Investigation and Honest Belief Defenses and Finds Cat's Paw Theory

In June, the Sixth Circuit Court of Appeals reversed an employer’s summary judgment in a USERRA retaliation case on the grounds that the plaintiff produced sufficient direct evidence of discrimination, produced sufficient evidence to proceed under a cat’s paw theory and the employer’s explanation was clearly pretextual when the plaintiff had been fired, in part, for engaging in conduct that violated corporate policy as directed in a text message by his allegedly biased manager.  Hickle v. American Multi-Cinema, Inc., No. 18-4131 (6^th Cir. 2019).  The employer could not rely on an honest belief defense when the investigator did not interview witnesses to the biased threats to terminate the plaintiff for a pretexual reason on account of his military service and supported the termination of the plaintiff in part for violating a policy at the clear direction of his manager who was allegedly biased against him.   

According to the Court’s opinion, the plaintiff had been hired while in high school, joined the national guard, served overseas and was promoted to kitchen manager.  Over the years, his manager repeatedly complained about his military leave and he complained about this to the General Manager.  He was never denied military leave.   When he reported that he required military leave the weekend of a big Avengers movie release in April 2015, his manager indicated in front of another employee that he might be fired if he did not report to work.   He also heard from other employees that his manager was planning to set him up to get fired and he reported this to his manager, who texted him that he should obtain written statements about this before leaving for the day.   Apparently, investigating workplace misconduct is exclusively reserved for corporate employees and obtaining witness statements is considered to be impeding an investigation.  In the meantime, he was involved in a dispute with two subordinates that lead to their termination for trying to take home too many leftover chicken-fingers.  


A corporate investigation commenced and he reported to the investigator that his manager had openly resented his military leave and indicated that he could be fired for attending drill instead of the Avengers premiere.  The investigator also indicated that the General Manager thought he should be fired.  The investigator did not interview the employee who heard the manager threaten the plaintiff with termination.  In the end, the investigator found that the plaintiff had engaged in several instances of misconduct, and he was fired in April 2015 for the chicken finger episode and impeding an investigation, despite the written instruction from his manager.   


On appeal, the Court found that he had produced sufficient direct evidence of retaliation with (disputed) evidence of his manager’s comments to him and his repeated complaints about it to the General Manager and to the investigator even though the discriminatory comments were not made by the decisionmaker or investigator who made the recommendation.   The Court was influenced by the fact that the plaintiff had been terminated for violating a rule at the explicit direction of the manager who had threatened to have him fired for attending national guard drill that same month during the Avengers premiere.

The decisionmaker (Bradley) and those with direct input (Kalman and Melton-Miller) knew about Adler’s persistent, discriminatory comments. . . . In sum, the decisionmaker knew that Hickle was told to commit a fireable offense—gathering statements and thereby impeding an investigation—by someone Hickle had repeatedly said had made discriminatory comments threatening his job.  Yet the decisionmaker chose to fire Hickle.

The Court also found sufficient evidence to proceed to a jury with a cat’s-paw theory of liability.  As previously explained by the Supreme Court, ““if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.”  The trial court did not find it to be a jury question whether the manager intended to cause the plaintiff to be fired when she directed him to obtain witness statements in violation of company policy even though she had very recently told him that he would be fired for a pretextual reason if he missed the Avengers premiere in order to attend military drill.   Drawing inferences in favor of the plaintiff could lead a jury to believe that the manager texted him order to set him up to be fired.


The Court indicated that it was also a question for the jury whether an independent investigation by corporate broke any chain of causation between the manager’s alleged animus and the decision to terminate the plaintiff’s employment.   On one hand, the plaintiff may have engaged in other misconduct as alleged by other employees involving the chicken-finger incident which was also cited as additional reasons for his termination, but on the other hand, the investigator weighted the “impeding the investigation” more heavily in her deposition testimony and failed to interview key employee witnesses who could have supported the plaintiff’s concerns with anti-military animus. “As best as we can tell, the investigation consisted mostly of gathering statements from a few employees, and was not necessarily thorough.” (But the deposition at issue admittedly was not clear).   Moreover, the investigator referred to the General Manager as her “partner” in the investigation.


The Court also found that the plaintiff produced sufficient circumstantial evidence of retaliation, particularly from the employer’s failure to articulate a cogent explanation for why “impeding an investigation” was an dischargeable offense when his own allegedly biased manager directed him to do gather the witness statements at issue.   The Court did not find it to be a close question whether sufficient evidence had been produced merely because the employer had always granted the plaintiff’s military leave requests.

We do not find this fact to be determinative, as there could be numerous situations in which an employer would grant requests for military leave (albeit grudgingly) for years and nevertheless finally wrongfully terminate an employee for taking such leave.  Certainly, granting Hickle’s leave requests helps AMC’s case, but it does not insulate AMC from charges of retaliation.

While the district court found that the employer had satisfied its burden of proving that it would have terminated the plaintiff even if he had never served in the military because of the other incidents alleged by his subordinates, the Court found that this was a question for the jury because:

it remains an open question whether the decisionmaker relied solely on the chicken-finger incident in deciding to terminate Hickle, and whether she would have reached the same conclusion in the absence of the charges of impeding the investigation. 

  The Court distinguished a case where the investigator did not know about the potential discriminatory animus and conducted a more thorough investigation.  The Court also rejected the employer’s honest belief defense when the investigator was aware of the manager’s potentially biased motive in directing the plaintiff to violate corporate policy and obtain witness statements.

Here, [the investigator] knew of Hickle’s USERRA complaints and knew that Adler told Hickle to take action that would amount to impeding the investigation; nevertheless, Bradley seems to have considered the charge of impeding the investigation relevant to the decision.  Thus, the honest-belief rule does not help the defendant.  The “particularized facts that were before [the employer] at the time the decision was made,”  . . ., included Adler’s anti-military comments and her text to Hickle telling him to collect statements.  This was not a case in which the decisionmaker was acting on a clean record and in ignorance of lurking discriminatory motives.  The decisionmaker was fully aware of the facts suggesting that the “impeding the investigation” charge was pretextual.

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.

Workplace Investigation Cannot Be Both Sword and Shield

Last week, the Portage County Court of Appeals issued an opinion addressing the confidentiality of workplace investigation notes, reports, recommendations and recordings of witness interviews when the employer’s attorney conducted the investigation and interviews.  Smith v. Technology House, Ltd., 2019-Ohio-2670.   The defendant employer had broadly asserted its Faragher/Ellerth affirmative defense of taking prompt remedial action, but had not specifically cited to its attorney’s investigation as the basis for that defense.  Nonetheless, the trial court found that the interview recordings, report and recommendations should be produced in discovery.  The Court of Appeals reversed in part on the grounds that the employer had not specifically waived attorney-client privilege or yet asserted that the investigation was the basis for its defense, but held that the recording of the plaintiff’s interview must be produced because she was clearly adverse to the employer at the time and had her own attorney.  It also ordered an in camera inspection of the investigation materials to determine what else may be outside privilege and work product protection because it predated the investigation, etc.  Finally, it noted that privilege may not be used as both a sword (i.e., defense) and shield (confidential). 


According to the Court’s opinion, the plaintiff alleged that she complained about sexual harassment.  The employer, fearing litigation, immediately retained counsel to conduct an investigation, which began the following day.  When the plaintiff was brought into a room with the company’s attorney, she left the room to contact her attorney and then informed the employer’s attorney that she was represented.  He still interviewed her, a few managers and a few hourly employees.  All of the interviews were apparently recorded.  When litigation commenced, the plaintiff sought during discovery a copy of the interview recordings of her and her non-supervisory co-workers as well as any notes and documents related to those interviews.  The employer responded that the information was protected by attorney-client privilege and the work product privilege.   The trial court granted the plaintiff’s motion, but the discovery order was broader than the request in that it ordered the production of all recordings and documents related to the investigation.  The defendant was also ordered to correct its discovery responses to identify the attorney who conducted the investigation.   The employer appealed the discovery order.


The employer pointed out that the Ohio Supreme Court has found workplace investigations by attorneys to be covered by the attorney-client privilege.   Therefore, the trial court’s broad order compelled the production of materials that were protected by privilege.   Nonetheless, the Court found that not everything related to the investigation was privileged.  “Documents and records whose existence preceded a factual investigation or were created independent of such investigation, i.e., independent of any communication between attorney and client, would not be protected by the attorney client privilege.”


“Also, the identity of persons who participated in the investigation is not covered by the privilege.”  Therefore, the attorney’s participation in the investigation is not confidential.

Further, the recording of the interview with the plaintiff was not protected by privilege because she was, by then, an adverse party with her own attorney.

Finally, the attorney-client privilege does not protect the recording of the interview with Smith as this interview may not properly be said to have occurred within the context of the attorney-client relationship.  In the case of a corporate client, Ohio cases have generally held that the privilege extends to communications between counsel and employees of the corporate client.  . . . In light of the foregoing, Technology House could not reasonably expect that the substance of the interview would have the character of a confidential communication between an attorney and client which underlies the reason for the privilege.  At the time of Smith’s interview, a de facto adversarial relationship existed between the parties and, therefore, the substance of that interview falls outside the scope of the privilege.

The Court also found that the attorney’s assessment and materials about the plaintiff’s interview would be protected as work product.   However, the application of privilege or work product to a particular document requires an analysis of the particular document and that was not possible on the current record because the employer failed to provide or produce a privilege log describing the documents being withheld as privileged and work product.

Upon remand, the trial court of necessity must either conduct an in camera review of the compelled discovery to determine whether the attorney-client privilege and work-product doctrine exempts them from discovery or require the production of description of the documents sufficient to make such a determination, noting that the following types of materials are not privileged: documents and records whose existence preceded Attorney Thompson’s factual investigation or were created independent of that investigation (supra at ¶ 24); the identity of persons who participated in the investigation (supra at ¶ 25); and any recordings or transcripts of the substance of the interview with [the plaintiff].

The Court also rejected the plaintiff’s assertion of waiver as premature on the current record.  The plaintiff argued that the employer’s assertion of its Faragher/Ellerth defense waived privilege and work product protection for the investigation. 

Although no Ohio court has adopted this position, it has been held in other jurisdictions that the assertion of the Faragher/Ellerth defense effects a waiver of any privilege attaching to a party’s investigation of the alleged harassment.  “When an employer puts the reasonableness of an internal investigation at issue by asserting the Faragher/Ellerth defense, the employer waives any privilege that might otherwise apply to documents concerning that investigation,” including “‘not only the [investigative] report itself, but [ ] all documents, witness interviews, notes and memoranda created as part of and in furtherance of the investigation.” . . . .

The issue of whether Technology House and Gear waived the privilege attaching to Attorney Thompson’s investigation by asserting a Faragher/Ellerth defense may be resolved by recourse to “[o]rdinary waiver principles” and the “animating maxim that the privilege cannot ‘be used as both sword and shield.’”  In re Itron, Inc., 883 F.3d 553, 558 (5th Cir.2018).  That is: “when a party entitled to claim the attorney-client privilege uses confidential information against his adversary (the sword), he implicitly waives its use protectively (the shield) under that privilege.”  (Citation omitted.)  Id.  

Accordingly, courts do not find a waiver of privilege unless a party indicates its reliance  on a particular investigation in its assertion of the Faragher/Ellerth defense.  The “clear majority view” is that the defense must be “premised, in whole * * * or [in] part, on the results of an * * * investigation.”  . .  . . “This holding aligns with the numerous cases across jurisdictions finding waiver ‘when a client asserts reliance on an attorney’s advice as an element of a claim or defense,’ * * * and the many dozens of cases finding no waiver when no such reliance has occurred.”

In the present case, Technology House and Gear’s assertion of the Faragher/Ellerth defense does not acknowledge the existence of much less indicate reliance upon Attorney Thompson’s investigation.  The mere assertion that they exercised “reasonable care to prevent and promptly correct any alleged sexually harassing behavior” does not constitute a waiver of any privilege applicable to the investigation.

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.

Employer’s Evaluation of Inconsistent Witness Accounts Does Not Show Dishonest Belief

Yesterday, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on an age and reverse race discrimination claim based on the employer’s honest belief – despite contradictory information produced during its investigation – that the plaintiff had violated company policy.  Hardesty v. Kroger Co., No. 18-3378 (6^th Cir. 1-23-19).   Choosing between inconsistent accounts given during an investigation does not create an issue of fact about the employer’s bad faith.  The investigation was sufficiently diligent to be worthy of credence and the Court refused to second-guess the harshness of the punishment.

According to the Court’s opinion, the plaintiff had been hired six months earlier to conduct telephone interviews with job applicants for a new store.  He was observed by a co-worker hanging up on calls directed to his desk so that he could continue a discussion with another co-worker and this was reported to management as to time, place and witnesses.  There seemed to be a discrepancy whether she saw this happen two or three times.  The company’s “customer first” policy requires applicants to be given excellent customer service.  An investigation was conducted which showed that his average call time was under 2 minutes per call, compared to an average of 5 minutes per call.  The call logs did not track individual calls.  When confronted, the plaintiff explained that he just spoke quicker than his co-workers.  The other co-worker denied noticing the plaintiff hanging up on callers, but this was not mentioned in the investigation report.  Although the plaintiff was given the option of resigning, he chose termination.

The Court rejected the plaintiff’s argument that the failure to mention in the report that another witnesses could not corroborate the allegation showed consciousness of guilt and doubt in the truth of the allegations against him.  It found this argument to require a strained and unreasonable inference to be drawn:

Even assuming that [his co-worker’s] inability to corroborate the accusation can be fairly read to refute it, investigations often produce conflicting evidence, requiring an employer to evaluate credibility and weigh various pieces of information.  Just because an employer must choose between inconsistent accounts “does not mean that there inevitably is a genuine issue of fact concerning the employer’s good faith.

The Court also rejected the plaintiff’s attack on the Company’s reliance on the significant discrepancy in the average call times: “exceptionally short call times could reflect a pattern of dishonest behavior and reveal a practice of failing to properly screen applicants or disconnecting calls.”

While the employer may have left some stones unturned (like checking surveillance footage to see if the reporting employee actually walked by the plaintiff’s cubicle as described),

when we evaluate the honesty of an employer’s belief, we do not require evidence of an optimal decisional process or a scorched-earth investigation.  Smith, 155 F.3d at 807.  “[T]he key inquiry is whether the employer made a reasonably informed and considered decision before taking an adverse employment action.”   

In any event, the evidence showed that the employer conducted a thorough and sufficiently diligent investigation which was worthy of credence:

She spoke to all potential witnesses, scrutinized Hardesty’s call logs for any suspicious patterns, sought advice from her colleagues in human resources and operations, and met with [the plaintiff] to clarify why his logs reflected such short phone calls as compared to his team’s average.  After reviewing all the data she believed available, she concluded that [the plaintiff] likely released at least one incoming call and determined that this warranted immediate termination.  “That [the plaintiff] or the court might have come to a different conclusion if they had conducted the investigation is immaterial.”  Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 287 (6th Cir. 2012).

The Court also rejected the plaintiff’s argument that his alleged misconduct did not warrant termination under the employer’s prior administration of its policies.  However, he apparently failed to identify a comparator who was sufficiently similarly-situated who was treated differently (i.e., better) because the alleged comparator’s actions may not have violated the policy.  Unfortunately, the Court did not elaborate.

Not a single Kroger employee involved in [this] investigation ever questioned whether hanging up on a customer merited termination.  And “disputes about the interpretation of company policy do not typically create genuine issues of material fact regarding whether a company’s stated reason for an adverse employment action is only a pretext designed to mask unlawful discrimination.”

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.

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 (6^th 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.

Sixth Circuit Reverses Employer’s Summary Judgment Where Plaintiff Was Fired Following Altercation But White Co-Worker Was Not Fired Until After Charge of Discrimination Was Filed

Earlier this month, the Sixth Circuit reversed an employer’s summary judgment on a race discrimination claim where the plaintiff had been fired for his role in an altercation but his white co-worker was not (until after the discrimination charge was filed).  Wheat v. Fifth Third Bank, No.13-4199 (6^th Cir. 5-4-15).  The Court found that the plaintiff had stated a prima facie case of discrimination and produced enough evidence of pretext to put the case to a jury.  In particular, the Court found the plaintiff could show that he was similarly situated to the white co-worker in relevant respects even though they had slightly different job duties and behaved differently in the investigatory interview.  What was relevant for comparative purposes was their behavior during the argument.  In addition, the Court found that a reasonable jury could conclude that the Bank’s decision to terminate the plaintiff had no basis in fact, did not motivate its termination decision, or was insufficient to warrant termination.   In so holding, the Court emphasized the different manner in which the Employee Relations employee conducted the interviews of the white and black participants and the conclusions she reached from ambiguous comments by the plaintiff.

According to the Court’s opinion, the plaintiff got into a brief and unprofessional confrontation with a white co-worker.   After the plaintiff returned to his work area, the co-worker then proceeded to the plaintiff’s desk and resumed the disagreement, which was then taken into the hallway at the suggestion of another co-worker. Their physical contact was limited to a swat by the white employee.  A supervisor separated them and Human Resources was brought in to take action.  The plaintiff was still angry, was unprofessional during the interview and refused to answer certain questions.  He felt that no one asked his side of the story and asked him only questions to confirm that he was guilty of initiating the altercation.  At one point, he threw his employee badge on the table, but took it back and denied he was resigning because he felt that he had not done anything wrong.  After he indicated without further elaboration that “Monday would be a big day,” he was directed to go home and not return until called.  The white employee was then called to the conference room, asked his side of the story, told to go home only for the rest of the day and was requested to return to work the following Monday.  He explained that they were just having a bad day.    The HR employee explained that the plaintiff posed a threat of workplace violence, but the white employee did not. That Monday, the plaintiff was terminated for violating the workplace violence and harassment policies.  The white employee was given only a written disciplinary action, being deemed the non-aggressor, which stated that he “did nothing wrong and the next time just go straight to management.”  His supervisor told him that he was “absolutely fine.”    

The Bank conducted a second investigation of the incident after receiving the plaintiff’s Charge of Discrimination.   The white employee claims that he provided the same version of events as during the first interview and again reiterated that he was the one that had reinitiated the argument after the plaintiff had left and that he was the one who had swatted the plaintiff in the hallway.   The Human Resources employee found his second version to be materially different and then fired him for violating the workplace violence policy and being dishonest in the first interview.  Following its investigation, the EEOC found probable cause of discrimination, but could not settle the plaintiff’s Charge.    This lawsuit followed.

The district court had concluded that the plaintiff could not show that a similarly situated employee who was treated differently from his white co-worker.   The Bank argued that the plaintiff had a different job, was the aggressor during the altercation and was rude and inappropriate in the post-altercation interview.   Based on the testimony of the plaintiff and his supervisor, however, the Court concluded that the plaintiff and the white co-worker were performing different aspects of the same job and, thus, were similar enough for comparison.  For evidentiary purposes, a ““plaintiff need not demonstrate an exact correlation with the employee receiving more favorable treatment” to be considered “similarly situated.” Instead, a plaintiff need show only that he and his comparator were “similar in all of the relevant aspects.””

 

More fundamentally, the identity of job responsibilities is not truly relevant here to the question of whether Wheat and Hatfield were similarly situated for Title VII purposes. Rather, because Wheat’s termination was spurred by a verbal, and potentially physical, altercation, the relevant comparison between Wheat and Hatfield should involve only the two men’s roles and actions in the contretemps.

Similarly, the Court rejected the Bank’s argument about plaintiff being the aggressor because there were disputed issues of fact as to who was responsible for prolonging the altercation and initiating any physical contact. “Such divergent explanations of the unfolding of the relevant events creates an obvious dispute of fact that should preclude the grant of summary judgment to the defendant at the prima-facie-case stage of the litigation.”

 

The Court also rejected the argument that they were different in how they behaved during the interview because there was a factual dispute about how the HR employee conducted the interviews, which may have created some justification for the plaintiff to refuse to answer certain questions.  Moreover, his comments -- which the HR employee found to be threatening -- were ambiguous and were not found to be threatening by his supervisor (who was present during the interview).  

The Court also found that the plaintiff had produced evidence to cast doubt on the Bank’s explanation for his termination sufficient to rebut its explanation as a mere pretext for discrimination.  

“Pretext can be shown by offering evidence that (1) the employer’s stated reason had no basis in fact, (2) the stated reason did not actually motivate the employer, or (3) the stated reason was insufficient to warrant the adverse employment action.”

The Court addressed each of the Bank’s termination explanations.  It found there was sufficient evidence to question whether the plaintiff’s behavior in the investigatory interview was sufficient to warrant his termination.  The plaintiff claimed that the HR employee’s questions were irrelevant and she never asked for his version of events, although she did so of the white employee.  Similarly, his vague statements about Monday being a “big day” and him “taking care” of himself were too ambiguous to warrant termination, particularly when the plaintiff denied making any threats.

The Court also rejected the Bank’s concern that the plaintiff would initiate more violence upon return to work because evidence had been produced that the white employee had been the aggressor, not the plaintiff.  In light of the fact that the white employee maintains that he had always told the Bank the truth about what happened, the HR employee’s credibility was in question as to whether she could genuinely have believed that the plaintiff was the aggressor before he was fired.

A jury could reasonably conclude that each of the rationales proposed by the defendant for its decision to fire Wheat either had no basis in fact, did not actually motivate the defendant’s decision, or was insufficient to warrant the challenged conduct.

Interestingly, there was no discussion in the opinion about the honest belief rule where the defendant acts based on mistaken assumptions after a good faith investigation.

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.

Suspicious Internal Investigation Report Will Not Support Application of Honest Belief Rule in the Sixth Circuit

Last week, a per curiam panel of the Sixth Circuit reversed an employer’s summary judgment decision on an ADEA claim and criticized the trial court’s application of the honest belief rule.   Stewart v. Kettering Health Network, No. 13-4080 (6^th Cir. 8-13-14).  In that case, the plaintiff police officer had been terminated following an investigation for using excessive force against a psychiatric patient by kicking him in the head after he had been subdued.  He denied the allegation and pointed out that a younger officer – who had not reported the incident -- had punched the patient and broken his nose, but had not been disciplined.  The plaintiff’s alleged excessive force had not been mentioned in the physicians’ contemporaneous notes of the situation, were not the subject of a patient complaint, and were not reflected in the patient’s injuries, but was the focus of a subsequent investigation by the allegedly biased supervisor.  The plaintiff presented evidence of his supervisor making ageist comments and jokes and discouraging him from seeking a promotion on account of his age.  His supervisor also only seemed to hire young officers.  Based on this evidence, the Court refused to credit or apply the honest belief rule to the supervisor’s investigation of the plaintiff’s alleged misconduct which supposedly justified his termination.

The Sixth Circuit panel noted that it applies a modified version of the honest belief rule:

 . . . for an employer to avoid a finding that its claimed nondiscriminatory reason was pretextual, “the employer must be able to establish its reasonable reliance on the particularized facts that were before it at the time the decision was made.” . . . . Even when the employer makes such a showing, “the protection afforded by the rule is not automatic. . . . [O]nce the employer is able to point to the particularized facts that motivated its decision, the employee has the opportunity to produce ‘proof to the contrary.’”

 . . . the key inquiry is whether the employer made a reasonably informed and considered decision before taking an adverse employment action.” . . . . “[w]hen the employee is able to produce sufficient evidence to establish  that the employer failed to make a reasonably informed and considered decision before taking its adverse employment action, thereby making its decisional process ‘unworthy of credence,’ then any reliance placed by the employer in such a process cannot be said to be honestly held.”

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 Affirms Summary Judgment for Employer Which Discovered Attempted Discrimination and Did the Right Thing

Last week, the Sixth Circuit Court of Appeals issued an opinion which demonstrated how an employer can avoid liability for blatantly unlawful discrimination when it discovers the problem soon enough to hit the re-start button.  Reeves v. Tenn. Farmer’s Mutual Ins. Co., No. 13-5824 (6^th Cir. 2-4-14).  The hiring manager told a female subordinate that he would never hire a woman for the claims adjuster position and then promptly hired a golf-pro to fill the open position.  When she complained, the Company quickly investigated, removed the hiring manager from the process, rescinded the job offer, re-started the hiring process and ultimately promoted a different female employee into the position.   The plaintiff filed suit, but the court granted summary judgment to the employer. The Sixth Circuit affirmed not only because the plaintiff could not identify a male who received better treatment, but also because when the employer discovered the hiring manager’s attempted discrimination, “it did exactly what it was supposed to do.”

According to the Court’s opinion, the plaintiff worked as a claims assistant. When a claims adjuster position became available, the employer failed to provide any training or parameters to the hiring manager.  When the plaintiff expressed interest in the position, the hiring manager told her that he would never hire a woman into the position because of “safety concerns.”  When the plaintiff called the female AVP of Claims, she was told there was nothing that could be done if the hiring manager did not want to hire her.  The hiring manager then interviewed 8 male candidates and the plaintiff.  Plaintiff was ranked second and a conditional job offer was made to a male golf pro.  When the plaintiff objected to the VP of Claims, an immediate call was placed to the hiring manager, who confirmed her allegations (because he obviously did not know any better).   The VP immediately put the hiring process on hold and brought in the employer’s legal department.   A more thorough investigation was conducted which confirmed that that hiring manager had made the alleged statement to the plaintiff, that he had disregarded the employer’s established practice of preferring internal candidates and that he had excluded potentially qualified candidates because they lacked college degrees.  Therefore, the employer rescinded the job offer, re-started the hiring process without the hiring manager’s participation, re-invited the plaintiff to apply and expanded the candidate pool to include two additional female applicants.

However, the plaintiff failed to impress the new hiring decisionmakers during her interview because she seemed anxious, rambled and criticized her co-workers.  She was not ranked among the top three candidates.  The golf pro, however, continued to impress and was ultimately ranked third. The top ranking candidate – another male – withdrew his application. The second ranked candidate was another female employee with greater tenure and experience than the plaintiff.  Therefore, she was offered the job.

The district court granted the employer summary judgment because the plaintiff could not identify a male who was treated better than her.  The Sixth Circuit affirmed.  The Court rejected the plaintiff’s argument that she suffered an adverse job action when the conditional job offer was initially made to the golf pro because it was ultimately rescinded.

But our inquiry is practical, not metaphysical. In response to Reeves’s complaint, Farmers immediately rescinded Martin’s offer and started the hiring process over. . . .

In summary, once Farmers found out about Delk’s (attempted as it turns out) discrimination, it did exactly what it was supposed to do. Reeves’s claims fail as a matter of law.

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.