Suits In The WorkPlace

Retaliation Doesn't Just Belong to Supervisors

    A case with fairly terrifying facts out of the Sixth Circuit shows clearly that a company can be liable for retaliation by a coworker with no managerial responsibility, even when the actions taken are not part of the employee's job or done in support of a company end.

     The case sets some new benchmarks for sexual harassment and retaliation, even by my somewhat inflated standards.  Four female employees of Anheuser-Busch alleged sexual harassment and retaliation on the part of one of their coworkers who worked on the brewery line at the Anheuser-Busch plant in Columbus, Ohio.  The company had an initial indication of problems in 1993, when it determined that the coworker wrote several harassing and threatening notes to a female employee, who had her car sideswiped in the company parking lot after she made a report to management.  Anheuser-Busch fired the male coworker, but he was reinstated as a result of the union filing a grievance on his behalf. 

     From 1999 forward, the male coworker targeted a series of women with sexual explicitly remarks and physical contact.  The women complained to their supervisors and the company investigated the alleged conduct.  Several weeks after the initial report of a problem, someone set fire to one of the women's cars at her home.  Although the woman alleged that the male coworker was responsible (he had a history of physical threats and intimidation against any number of people at the plant), the company did not investigate and told the woman that she should stop making comments because she could be sued for slander.  The investigation determined that the male coworker had engaged in inappropriate conduct, but did not discipline him.  Instead, the complainant received a letter informing her that the company had been unable to substantiate her allegations of harassment and that she should contact management if she had any questions.

     The company later received an anonymous letter indicating that the brewery botched the investigation by failing to interview people on the line about the male coworker's conduct and noting that almost everyone was afraid of him because of his past actions.  The letter went on to identify instances of threats made to employees, people having their tires slashed on their cars, and threats to kill any woman who was responsible for him losing his job.  After yet another complaint from female employees, the company investigated and ultimately fired the male coworker.  Shorlty after his termination, someone burned down one of the complaining employees’ house.  The male coworker was suspected, but before anything else could be done, he shot his girlfriend and killed himself.

     Although the district court granted summary judgment against the female plaintiffs, the court of appeals reversed the retaliation claims of one of the women and sexual harassment claims she brought along with another of the female plaintiffs.  In doing so, the court recognized that a coworker's acts in retaliation for reporting sexual harassment can be charged to the employer's account, where supervisors or members of management have knowledge of the coworker's retaliatory behavior and either condone it or fail to respond to it so inadequately that the employer can be said to be indifferent or unreasonable under the circumstances. 

     Most circuit courts of appeal agree with this position, but it bears repeating again.  We typically worry about supervisor retaliation in Title VII cases, because the link between the conduct and the interest of the company is apparent.  But this decision makes it clear that retaliation performed for a strictly personal reason can also create claims against a company.

     There are several messages in this opinion, but the clearest for me is that a company that allows a situation like this one to continue to fester is ultimately going to get tagged with the conduct of the non-managerial harasser.  When an employer has clear indications of a problem, and, in essence, throws up its hands once it loses a union grievance, that's simply unacceptable. The court drove that point home. 

Reasonable Accommodation and Religious Beliefs

    I've had occasion in this blog to comment on religious discrimination cases several times.  A new decision by the 4th Circuit does a very nice job of laying out the parameters to be considered by an employer in determining whether to grant a request to deviate from its work procedures to accommodate someone's religious beliefs.

    Plaintiff belongs to the Living Church of God.  Among other things, his religious beliefs prohibit him from working from sundown on Friday to sundown on Saturday and on several other religious holidays.  The holidays typically total 20 days a year, including 14 that do not already coincide with part of the weekly Sabbath.  The employee initially did not encounter a problem because he worked only during day shifts on weekdays and was able to use his company vacation days for non-Sabbath observances. 

    Unfortunately, this situation did not remain static.  The company restructured its operations, forcing the plaintiff to change shifts as a result of being bumped by employees with more seniority in the plant.  It became immediately apparent that the plaintiff could not continue to attend all of his religious obligations while meeting his work schedule.  The company, which was operating under a collective bargaining agreement, had a fairly flexible time off policy, including 15 vacation days, 3 floating holidays, the ability to swap shifts 8 times per year with another employee, and the ability to take 60 hours of unpaid leave for any reason.  The company also allowed an employee to use up to 3 vacation days in 1/2-day increments, if necessary.  However, an employee exceeding 60 hours of unpaid leave is terminated.

    Notwithstanding these options, plaintiff could not maintain his religious observance schedule.  He requested permission to extend his unpaid leave of absence, something the company had allowed on a one-time or non-recurring event basis.  But because his request was for something that was going to recur, the company denied his request.  Plaintiff was ultimately terminated when he failed to show up for work on one of his religious holidays.

    The district court granted summary judgment and the case went up before the 4^th Circuit.  The court noted that an employer can prevail on a case of religious accommodation discrimination if it can show either that it provided the employee with a reasonable accommodation for the religious observance or that providing an accommodation would have caused an undue hardship to the employer.  Undue hardship is defined as something that results in more than a de minimus cost.  The plaintiff contended that an employer provides a reasonable accommodation only when it completely eliminates the conflict between the religious practice and the work requirement.  The 4th Circuit dealt with this easily, noting that the requirement was for a reasonable accommodation; an employer was not required to offer an alternative work arrangement that totally eliminated any potential conflict.  The court stated that the employer's seniority-based bidding system for work shifts is a significant accommodation to the needs of its employees, and that the additional flexibility in the work schedule further bolstered the employer's claim that it had attempted a reasonable accommodation.  The court also approved the employer's granting the employee the opportunity to take additional 1/2 days of time off above the CBA entitlement, as well. 

    The important point of the court's opinion is this -- an employer's existing policies can be sufficiently flexible to comprise a reasonable accommodation for religious claims.  In this case, the court cited the employer's collectively bargained attendance programs, without modification, as sufficient evidence of reasonable accommodation efforts.  A second important holding by the court:  an employer may consider the feelings and morale of its workforce in assessing whether additional modifications of its policies will be an undue hardship.  The court specifically noted that evenhandedness and fairness are of paramount importance to the functioning of any workplace.  In a particularly telling statement, the court said, "Coworkers have rights, too." 

    We are seeing an increasing number of workplace accommodation claims for religious practices.  This decision provides some well thought out guidance on the limits of what an employer has to do to satisfy its obligations under the law in dealing with these claims.

An Argument for Hands-on Risk Management of Workers Compensation Claims

As I have noted previously, for commentary purposes, some cases are simply too good to pass up.  Such a case came before the North Carolina Court of Appeals recently.  Penny M. Rumple Richardson vs. Maxim Health Care, et al. is a workers’ compensation case where even the parties’ names have associated innuendo.

The case is an appeal of a workers’ compensation award to a woman who claimed that she was injured in an on-the-job car accident.  She sought compensation for, among other things, the replacement of her breast implants.  Following the accident, the plaintiff noted that one of her breasts seemed to be deflating and the other one was “rippling” (or perhaps rumpled).  She had both implants replaced and then filed a claim for the surgery.

The Court first cited a portion of the workers’ compensation statute that says “injuries shall include breakage or damage to eyeglasses, hearing aids, dentures or other prosthetic devices which function as a part of the body.”  I’m not really sure that breast implants actually “function” in the same manner as dentures, but the Court found that the claims themselves were properly before it and then looked to whether the damage to the implants was a result of the accident.  In finding there was proper compensation for damage to one implant (the one that deflated) but not the other, the Court looked to the testimony of the plastic surgeon who said that the rippling affect might have been due to under-filling of the implant initially.  Why there had been no rippling previous to the accident was not explained.  The lower commission decision found that if a claimant has to replace one breast implant, then, in the interest of symmetry, it would seem logical that the other side would need to be replaced as well.  But the Court of Appeals rejected this balanced analysis and awarded compensation for replacement of only one implant.

Let’s hope the plaintiff can afford the bill for getting the rest of this ironed out.

It Would Have Been Quiet Enough at a 49ers Game

     Time for another wild and wacky sojourn into the work of the employment lawyer. 

     Plaintiff sues his employer, a New Jersey school board, for disability discrimination.  He loses on summary judgment.  The employer, for reasons that will become apparent, also moves for attorneys' fees and sanctions against the plaintiff, but loses.   The employer appeals, claiming that the disability claim was completely frivolous and that the plaintiff gave false deposition testimony.  This is a difficult appeal for the employer because the district court's ruling is reviewed on an extremely generous "abuse of discretion" standard. 

     Plaintiff was injured in 1998 when a "wooden speaker" fell on his head.  I can recall just such a person giving my high school graduation address.  This caused a "post-concussion syndrome" which made the plaintiff extremely tired, caused him difficulty in focusing, gave him headaches and made him sensitive to loud noises.  The plaintiff's requested accommodations -- placing all directives in writing, giving him extra time and resources to complete his work, limiting his work day to 8 hours, and providing a quiet, distraction-free working environment -- should have tipped somebody off right away that he was malingering.  And if that wasn't enough, plaintiff also claimed that the extreme fatigue he experienced limited him to working 40 hours a week and that the number of hours in his subsequent work days had to be adjusted if he was required to stay later than 4:00 p.m. on a particular day.  He claimed he could not chaperone any school events, such as school dances, basketball games, etc., because of his problem with "loud noises".  Again, the scam-alert light should have been flashing.

      School board attorneys asked the plaintiff some pointed questions at his deposition about what he had done the previous Monday night.  After responding that he could not remember, plaintiff then said he had watched the New York Giants football game at home alone; because of his disability, the plaintiff stated there was no way he could have attended the game because he would have been so fatigued afterwards that he would have been forced to take the next day off from work.

     Note to anyone being deposed:  when you get a specific question like this, it usually means you are being set up.  Sort of like, "And what specifically was your relationship with Ms. Lewinsky on the evening of June 2, 1997?" 

     Of course, the employer had video of the plaintiff on the evening in question.  The plaintiff was recorded meeting with a group of fans, driving to Giants Stadium, tailgating in the parking lot, attending the full game, and returning home shortly before 2:00 a.m. and then showing up to work the next day. 

      After being confronted with this falsehood, the plaintiff claimed that he had something called "False Memory Syndrome."  He presented a letter from a doctor explaining that individuals with brain injuries sometimes concoct stories that they sincerely believe to be true when placed under stress (they should have called it "Teenager Out After Curfew on the Weekend  Syndrome").  The doctor apparently never treated plaintiff and did not diagnose him with this problem; the letter was simply some type of information piece.

     And now it is clear why the school board went after attorneys' fees and a sanction. 

     Notwithstanding the fact that the plaintiff's evidence did not support even a minimal case of disability discrimination and that his false memory excuse strained credulity, the Court of Appeals, incredibly, found that the district court did not abuse its discretion.  In other words, in a clear case of almost certain perjury, both the district court and the court of appeals could not bring themselves to impose some type of penalty on the plaintiff for generating perhaps $50,000 - $75,000 in legal fees for his employer.

     And people wonder why these cases still get filed.