Showing posts with label negligent investigation. Show all posts
Showing posts with label negligent investigation. Show all posts

Thursday, October 10, 2019

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 (6th 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.

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.

Thursday, October 22, 2015

Ohio Appeals Court Reverses Employer’s Summary Judgment on Sexual Harassment and Retaliation Claim

Last week, a unanimous Butler County Court of Appeals reversed an employer’s summary judgment on a sexual harassment and retaliation claim brought by a former grocery store employee.  Ellis v. Jungle Jim's Market, Inc., 2015-Ohio-4226.   The court found that there were factual disputes which prevented judgment on the employer’s defenses even though it did a lot correctly after learning of the alleged harassment.  In particular, the Court found there was enough evidence to show that the employer did not sufficiently prevent or remedy harassment because its management had not been trained about harassment or workplace investigations, it failed to obtain written statements from all witnesses in a timely fashion and its anti-harassment policy did not specifically address informal and verbal reports of harassment.  A jury could also find that the employer retaliated against the plaintiff for filing her OCRC Charge by immediately transferring her to a lower-skilled bagging position at the same rate of pay purportedly in order to protect her because it had not transferred her when she earlier complained about harassment and had not transferred or suspended the harassing employee.

According to the Court’s opinion, the plaintiff had been hired as a bagger and was subsequently promoted into the seafood department.  She had been given the employer’s sexual harassment policy, which directed her to bring concerns to her supervisor, her manager or to a certain employee (who had previously died) who chaired the store’s investigation committee.  About a month after her promotion in February 2013, she claimed that her supervisor subjected her on a daily basis to inappropriate sexual comments and suggestions, many of which were graphic and gross.   Although she regularly objected to his conduct and suffered emotional and physical distress from it, she did not report it to management because he told her that he was just kidding and implicitly threatened her when he said that he knew that she liked her job.
Another employee reported the alleged harassment of the plaintiff to the assistant store manager, who then reported it to the store manager (who now chaired the store’s investigation committee).  After speaking with the plaintiff, the store managers interviewed her supervisor and two other employees (who did not corroborate the plaintiff’s allegations).  They did not interview all of the department employees or obtain written statements from the department employees.  Nonetheless, they issued a disciplinary action on May 5 directing the supervisor to cease any sexual comments under penalty of immediate termination.  The plaintiff was instructed to report any further problems to the store manager and she declined the opportunity to transfer out of the department.  Her working hours were changed so that she would no longer work with her supervisor.
There was conflicting evidence about whether the inappropriate comments continued.  The plaintiff at one point testified that he only whispered about her to other employees.  She claimed, however, that he retaliated against her by denying her time off, etc.  She did not immediately bring these issues to management even though they regularly walked through her department and checked in with her in order to ensure that she was suffering no further harassment.  Nonetheless, the plaintiff filed an OCRC Charge on May 28 alleging sexual harassment.  She was almost immediately transferred back to bagging without any reduction in pay and declined the owner’s offer to return her to the seafood department.  She subsequently injured her knee and was medically restricted to a sitting position.  Accordingly, the store gave her its only light duty position as the store greeter.  However, she resigned because she felt that she had been put in that position in order to ridicule her.
The plaintiff filed suit in November.  The following May, the store finally interviewed the rest of the seafood department employees almost a year after its first investigation and received further corroboration of the sexual harassment and that it continued after the plaintiff had been transferred out of the department.
Unlike the trial court, the Court of Appeals found that the plaintiff produced sufficient evidence that her supervisor created a hostile working environment with his daily sexual comments and suggestions because his conduct could be found by a jury to be sufficiently severe and pervasive enough to alter the terms and conditions of employment.  The Court also found that the alleged harassment was also objectively and subjectively hostile to a reasonable person in the plaintiff’s position.  Evidence about her failure to complain, the testimony of co-workers that they never witnessed the alleged harassment and the fact that she accepted a ride home from the harasser only affected the weight of the employer’s defense and not whether the plaintiff could prevail at trial.
Unlike the trial court, the Court also found that there was sufficient evidence to hold the employer vicariously liable for the harassment.   First, it found that there remained issues of material fact about whether the employer could raise the “no tangible employment action” defense.  The plaintiff could not show that her harassing supervisor had taken any tangible actions because her transfers, etc. had been taken by upper store management.  Nonetheless, the employer was not entitled to summary judgment on the defense because it could not show that it took sufficient steps to prevent and remedy harassment.   In particular, its policy did not explicitly provide for informal or verbal complaints.   There were also issues as to whether the employer actively implemented the policy or trained supervisors or staff about it because it had not been updated following the death of the investigations committee chair and none of the managers had received training about harassment or how to conduct investigations. Second, the employer did not interview all of the departmental employees identified by the plaintiff in her interview or obtain written statements from any departmental employees until after the plaintiff filed her OCRC Charge.   The Court also faulted the employer for leaving the plaintiff in the department, only periodically touching base with her thereafter and not training the harasser about how his conduct had been objectionable.
As for her retaliation claim, the trial court had found that the transfer back to a bagging position at the same rate of pay was lateral and therefore, not materially adverse.  The Court of Appeals found this to be a disputed factual issue because a bagger’s diminished responsibility might have deterred a reasonable person from filing an OCRC Charge.  Further, the plaintiff could show a causal connection between her transfer and her protected activity because she was transferred almost immediately (or within a few days) after the employer learned that she had filed her OCRC Charge.  It also found a factual dispute as to whether the employer’s legitimate business reason for transferring her – to protect her from further sexual harassment – was pretextual because it had not transferred her earlier even though she had allegedly complained about continued harassment.  A jury could reasonably find that she had been transferred in retaliation for filing her OCRC Charge because the harasser could have been transferred or suspended instead.

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.

Wednesday, July 16, 2008

Ohio Court of Appeals Dismisses Supervisor’s Defamation Claims Against Union Officer.

The Trumball County Court of Appeals affirmed the dismissal of a libel suit brought by a beleaguered night-shift supervisor against a local union officer arising out of statements made about the manager in the union newsletter more than ten years ago. Jacobs v. Budak, No. 2007-T-0033 (6/9/08). In the article, the supervisor was referred to as the “midnight cowgirl” and was accused of not following the collective bargaining agreement in assigning overtime opportunities. The Court ultimately affirmed dismissal of the lawsuit because the supervisor could not show with clear and convincing evidence that she suffered actual harm from the article or that the union officer acted with actual malice (i.e., actual knowledge of the falsity, or reckless disregard for the truth, of the statements).

Following the publication of the union newsletter, the supervisor “was subjected to callow harassment by her employees and fellow co-workers. [She] testified that the harassment lasted for a period of two to three months following the publication of the article and that she was subjected to numerous cat-calls and “mooing” sounds as she walked or drove her scooter through the plant. She received prank phone calls where unidentified persons would yell such quips as “yippy-ti-yi-o,” “moo-ooo”, and “got your spurs on.” In addition, cow horns and a cowboy hat were placed on her work scooter subjecting her to further ridicule as she drove through the plant.”

Because the dispute arose out of a “labor dispute” (i.e., a dispute between management and a union over the bargaining agreement and other terms and conditions of employment), the supervisor was required to prove her claim by clear and convincing evidence (which is a higher standard of proof than the regular preponderance of the evidence or more likely than not standard used in most civil cases). She was also required to prove that the allegedly false and defamatory statements were made with actual malice without privilege to a third party and that she suffered actual damage from the statements. “A statement is published with actual malice when it is made with the ‘the knowledge that it was false or with reckless disregard of whether it was false or not.” The Ohio Supreme Court has previously noted that “[a]ctual malice ‘cannot be implied from the character and content of a publication. *** It is not sufficient for a libel plaintiff to show that an interpretation of facts is false; rather, he must prove with convincing clarity that defendant was aware of the high probability of falsity.’”

Therefore, “[m]ere negligence is not enough to establish actual malice . . . Thus, ‘reckless conduct is not measured by whether a reasonably prudent man *** would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.’” In fact, courts have been clear that the failure to investigate has been found to constitute malice only “where the defendant has serious doubts that the statement is true.”

In this case, the union officer was able to show that he conducted an investigation and there was some factual basis for his allegations against the supervisor. Although the supervisor alleged that the union officer conducted his investigation negligently, even if that were true, the court found “no evidence that [the union officer] had any serious doubts as to the veracity of the statements.”

“It is clear that access to equalization records was an ongoing debate as the issue was discussed in union-management meetings before, during, and after the article was released. Indeed, [the defendant union officer] was not even familiar with Ms. Jacobs until he was ordered to investigate [an employee’s] complaints in early May of 1997 by his supervisor. Although the statements were certainly negligently made, we cannot say that they were made with such reckless disregard or knowledge as to their falsity.”

The Court also concluded that the supervisor was required to prove actual damages from the allegedly defamatory statement because it arose out of a union dispute and that she failed to do so. “As evidenced by the numerous medical records that were entered into the record, [the supervisor] has a long history of physical and mental distress that may or may not have been exacerbated by this incident. According to her employment evaluations and her own testimony, her employment was unaffected. Indeed, following the release of the article she was given a six percent raise and has been consistently rated in her job performance as “satisfactory” or above. The testimony and medical records [the supervisor] did submit failed to evidence that the article was the proximate cause for the stress she was facing at that time. Indeed, [her] own physician, Dr. Meyers, could not differentiate between the stress that was caused by the article and the stress that resulted from the ensuing legal battle.”

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/11/2008/2008-ohio-2756.pdf.


NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney