Today, the federal Sixth Circuit of Appeals released an unanimous opinion affirming the award of $1,039,504 in compensatory and punitive damages, back pay, and front pay (but which does not yet include court costs or attorney fees) to a female plaintiff who quit her job paying less than $10/hour after only five weeks on the job because she was sexually harassed by co-workers. West v. Tyson Foods, Inc., No. 08-6516 (6th Cir. 4/16/10). While the amount of the verdict is enough by itself to get an employer's attention, this case is particularly instructive in watching how many times management dropped the ball despite having good policies and procedures in place because apparently no one was enforcing those policies or administering those procedures when it came to this plaintiff. Moreover, the Court found that the employer was on notice of the continuation of the sexual harassment following the employee's first complaint even though she did not complain to her supervisor again before walking off the job permanently. Therefore, this is a particularly instructive case for human resources professionals.
According to the Court's opinion, the plaintiff worked on an assembly line. She attended an employee orientation which covered the employer's sexual harassment policy twice, and was informed that all sexual harassment complaints would be investigated within two weeks and that the investigation would be kept confidential. Nonetheless, in that same first week, she was harassed verbally by a number of co-workers and within two more weeks the harassment escalated to inappropriate touching which put her in tears. When she reported the harassment to the lead lineperson and her supervisor – giving names and examples of the offending the conduct, she was advised not to take it personally because they're like that to all women and it was because she was "hot." When they saw she was not amused, they said they would look into it, asked her not to report this to HR and then later offered her a transfer to a different location. While the plaintiff thought that her supervisor would report this to HR, instead he just watched out for her for a few days. Nonetheless, the harassment continued for the next two weeks, escalated to groping and she stopped going to work after being followed out to the parking lot by the alleged harassers because she feared getting raped. The employer notified her that it was treating her absence as job abandonment and fired her.
The employer refused to give her the last paycheck until she completed an exit interview. At that point, she met with her first HR employee for 45 minutes and recounted in detail how she had been harassed, how she had reported it to her supervisor and how it had continued even after he transferred her to another location. He promised that an investigation would be conducted within two weeks in accordance with company policy. However, instead of specifically alerting someone or investigating it himself, the HR employee passed on his notes (on the exit interview form) to the inbox of an HR clerk and the form was never seen again. Yet another employee quit because of sexual harassment shortly thereafter and, again, no investigation was conducted.
More than a month later, the plaintiff filed a Charge with the EEOC and the employer received it a few weeks later. At that point, an investigation commenced and a search of over 2300 files was made to find the missing exit interview form. When the form could not be found, a cursory investigation was conducted, but it did not include the HR employee who conducted plaintiff's exit interview, or the offending employees. The employer told the EEOC that it had conducted an investigation after the plaintiff's exit interview, that her complaints to her supervisor had been nonspecific and that she asked him not to report it to HR. Apparently, however, the employer disciplined a number of employees for not reporting the plaintiff's concerns to HR, but not the HR employee who conducted her exit interview.
Most of these facts did not come out, however, until litigation commenced at the end of the year and the employees and supervisors testified under oath. The Court refused to exclude evidence of the employer's post-termination investigation on the grounds that it showed how the employer failed to take prompt remedial action and had shown manifest indifference to her concerns (which was relevant to punitive damages). It also instructed the jury that it was permitted to conclude that the employer "lost" the exit interview notes because the information was favorable to the plaintiff. The jury found in favor of the plaintiff and the trial court agreed during post-trial motions.
The Supervisor's Response to the Plaintiff's Complaint Was Ineffective and He Was at Fault for Not Confirming with Her that the Harassment Had Stopped.
The Court of Appeals affirmed because "[v]iewing the evidence in the light most favorable to [the plaintiff], the jury reasonably could have found that [the employer] knew or should have known of the harassment and that [the employer's] response reflected an attitude of permissiveness." In addition,
a reasonable jury could have concluded from the evidence that [her supervisor] failed to take a number of steps that would clearly be necessary to establish a base level of reasonably appropriate corrective action under the circumstances, such as speaking with the specific individuals identified by [the plaintiff], following up with [the plaintiff] regarding whether the harassment was continuing, and reporting the harassment to others in management. [The supervisor's] failure to do these things at any time supports the conclusion that his response was neither prompt nor appropriate.
The Court had little sympathy for the supervisor when he testified that he thought the harassment had stopped because the plaintiff never complained to him again because she could have relied on his promise to "take care of it." This finding alone should trouble employers because other court decisions have protected employers from continuing harassment claims when the plaintiff failed to notify the employer that the initial remedial actions were insufficient. This case puts the burden on the employer to check back with the complaining employee to ensure that the remedial actions were effective.
The Court also rejected the employer's contention that it could not be held liable for the harassment because it did not have knowledge of it. As the court noted: "In the context of sexual harassment claims, actual notice is established by proof that management knew of the harassment." Thus, when the plaintiff told her supervisor, who had authority to receive sexual harassment complaints and to conduct an investigation, the employer was put on notice as well. To the extent that the employer's ignorance was based on the plaintiff's failure to complain a second time to her supervisor about the continuation of the harassment, "management's ignorance was the result of [the employer's] failure to respond appropriately to the original complaint by, for example, investigating the complaint, speaking to the harassers, or checking back with [the plaintiff], and such failure cannot be used as a shield against a claim of sexual harassment."
The Loss of a Key Piece of Evidence Can Be Held Against an Employer.
The Court also found that it was appropriate to instruct the jury that if it:
believe[s] that the [exit interview] notes are missing as the result of the unjustified or careless actions or inactions of [the employer], or any of its agents, then you may, but are not required to, draw an inference that the missing evidence would be favorable to the Plaintiff and adverse to the Defendant.
The Court also rejected the employer's argument that it was an abuse of trial court discretion to permit evidence about the plaintiff's complaint during her exit interview and the employer's post-termination investigation because it was not relevant to her constructive discharge claim and would confuse the jury about when liability attached for the sexual harassment. However, such evidence was relevant to the plaintiff's claim for punitive damages because the employer's post-termination conduct was relevant to its good faith in responding to her complaint. Moreover, considering the significant amount of other evidence about the employer's indifference and the existence of sexual harassment, the prejudicial affect on the jury was found to be minimal.
The Plaintiff's Constructive Discharge Was Foreseeable and Caused by the Employer's Indifference.
The Court also rejected the employer's attack on the plaintiff's constructive discharge claim:
A claim of constructive discharge requires a determination that "working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Held v. Gulf Oil Co., 684 F.2d 427, 432 (6th Cir. 1982). "To determine if there is a constructive discharge, both the employer's intent and the employee's objective feelings must be examined." Logan v. Denny's Inc., 259 F.3d 558, 569 (6th Cir. 2001). An employer's intent can be shown if the employee quitting is a foreseeable consequence of the employer's actions. An employee who quits has "an obligation not to assume the worst, and not to jump to conclusions too fast."
In this case, because there was evidence that the employer tolerated "badgering, harassment, or humiliation" in that at least the plaintiff's supervisor was aware of the alleged harassment and failed to adequately address them. "The jury could have reasonably found that this evidenced a deliberate choice to allow intolerable working conditions." Moreover, the Court found it was foreseeable – even likely that the plaintiff would resign under the circumstances.
It is foreseeable that, after weeks of continuous physical and verbal harassment that goes unaddressed, an employee in [the plaintiff's] position would choose to resign. Further, it cannot be said that [she] "assumed the worst" or "jumped to conclusions." She waited beyond the two-week period from her initial complaint to [her supervisor] within which [the employer's] policy assured her an investigation would be completed, and an employee subject to continuous verbal and physical harassment is not "jumping to conclusions" when she resigns under those conditions.
Punitive Damages Were Appropriate.
Finally, the Court found that punitive damages were appropriate in light of the employer's reckless disregard for the plaintiff's civil rights. She could show that her supervisor and the HR manager who conducted her exit interview acted in the risk of violating her civil rights by not reporting her harassment complaint to HR and not conducting an actual investigation because management training had included anti-harassment training. In addition, the jury could believe that the employer attempted to mislead the EEOC by claiming that it had promptly conducted an investigation after her exit interview instead of waiting several weeks until it received her EEOC Charge. Finally, considering the different versions of events given at trial, the jury could also find that the employer was untruthful.
Although the employer could have avoided punitive damages by showing that it acted in good faith, this requires more than proof that a policy has been adopted. Instead, an employer must prove an effective implementation of its antiharassment policy. In this case,
[A]lthough there was evidence that [the employer] communicated its policy to its employees with some frequency, there was also substantial evidence that the policy was disregarded in its implementation and enforcement. There was evidence of widespread disregard of the policy by employees in engaging in harassment, by supervisors in not reporting to HR incidents of harassment or failing to conduct follow-up investigations, by co-workers in not reporting incidents of harassment, and by HR managers in not investigating reports of harassment. Further, the investigation, when it did take place, was, as the district court stated, "notably flawed." [The employer's] complete failure to follow through, twice, on complaints of harassment by [the plaintiff], followed by a deficient investigation in response to the EEOC's inquiry, does not fulfill "Title VII's objective of motivating employers to detect and deter Title VII violations."
Employers can learn from this decision by reminding its own staff – as well as front line management – of the importance of reporting sexual harassment concerns to HR and then promptly investigating them instead of hoping that they will just go away on their own. When even a new employee making just above minimum wage can win in excess of a million dollars after working just five weeks, it is time for production and HR supervisors to understand how important it is to report and fully investigate sexual harassment complaints.
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.
