Chapter 7 - SEXUAL HARASSMENT
Article 7-13 (Sept. 2011)
Link: NEVADA - GENDER DISCRIMINATION - MALE POLICE OFFICER RECEIVED HARSHER DISCIPLINE THAN FEMALE
7-12
OHIO SUPREME COURT: FIRE CHIEFS AND OTHER FD SUPERVISORS WHO IMPOSE DISCIPLINE ON PERSONNEL ENJOY QUALIFIED IMMUNITY - SHOULD NOT BE SUED IN THEIR INDIVIDUAL CAPACITY
On April 7, 2011, in Zumwalde v. Madeira & Indian Hill Joint Fire District, 128 Ohio St.3d 492, 2001-Ohio-1603, the Ohio Supreme Court (7 to 0) held:
“In a civil action brought by an employee of a political subdivision against another employee of the political subdivision arising out of the employment relationship, R.C. 2744.09(B) removes immunity only as to the political subdivision and does not affect the statutory immunity of the fellow employee.”
http://www.sconet.state.oh.us/rod/docs/pdf/0/2011/2011-ohio-1603.pdf.
This is an important decision by the Ohio Supreme Court. Ohio Revised Code 2744.09 (B) authorizes:
“Civil actions by an employee, or the collective bargaining representative of an employee, against his political subdivision relative to any matter that arises out of the employment relationship between the employee and the political subdivision.”
The Court described the facts:
“Plaintiff-appellee, Barbara Zumwalde, previously sued defendant Madeira and Indian Hill Joint Fire District for unlawful employment discrimination. As part of the resolution of that matter, the district offered Zumwalde full-time employment contingent upon her passing a physical examination.
In completing a questionnaire for the examination on July 14, 2005, Zumwalde indicated that she neither had nor had ever had back problems. Further, Zumwalde certified that all her answers in the questionnaire were true and complete and acknowledged that any material and deliberate falsification of fact would be grounds for dismissal. It was later learned, however, that Zumwalde‟s medical records indicated that she had received chiropractic treatment for back pain beginning in May 2005.
On September 29, 2005, Zumwalde sustained a work-related injury to her low back during a training exercise. As a result, Zumwalde filed a workers‟ compensation claim, which the district approved for benefits on or about October 14, 2005.
While investigating Zumwalde‟s workers‟ compensation claim, Chief Stephen Ashbrock of the district learned of Zumwalde‟s chiropractic treatment for back pain. Ashbrock determined that Zumwalde‟s misrepresentations violated the district‟s Personnel Guide and scheduled a predisciplinary conference for July 31, 2006.
Based on the evidence presented at the July 31, 2006 conference, Ashbrock found that Zumwalde had violated two provisions of the Personnel Guide. Ashbrock suspended Zumwalde for 30 calendar days without pay and provided notice of her right of appeal to the district‟s Personnel Committee of the board of trustees. Zumwalde appealed the suspension. On October 20, 2006, the Personnel Committee sustained Ashbrock‟s conclusions and findings but reduced the period of loss of pay to 20 calendar days.
Zumwalde then filed suit in the Hamilton County Court of Common Pleas against the district and Ashbrock, asserting retaliation claims for filing (1) her previous discrimination suit and (2) the workers‟ compensation claim. The district and Ashbrock filed a motion for summary judgment. Ashbrock argued that, as a district employee, he was immune from Zumwalde‟s claim pursuant to R.C. 2744.03(A)(6) and that there was no evidence that he had acted with a malicious purpose, in bad faith, or in a wanton or reckless manner so that he would lose his immunity. The trial court, in denying Ashbrock‟s motion, held that a genuine issue of material fact existed as to whether Ashbrock had acted maliciously, in bad faith, or in a wanton or reckless manner.”
The Ohio Supreme Court concluded as follows:
“Accordingly, we reverse the judgment of the court of appeals holding that Ashbrock was not entitled to immunity pursuant to R.C. 2744.09(B).”
Legal Lesson Learned: Very helpful decision; as a matter of public poly, Fire Chiefs and other senior officers should not be reluctant to impose discipline out of fear of being sued personally.
7-11
U.S. SUPREME COURT – SEXUAL DISCRIMINATION - COURT THROWS OUT PROPOSED NATIONWIDE CLASS ACTION LAWSUIT BY 1.5 MILLION FEMALE EMPLOYEES OF WAL-MAR.
On June 20, 2011, in WAL-MART STORES, INC. v. DUKES, et al, the Court held (5 to 4) that a U.S. District Judge in California improperly certified this class action, and the 9th Circuit Court of Appeals (San Francisco) improperly affirmed that certification. Female employees in particular stores may file lawsuits claiming discrimination by particular store managers, and Wal-Mart can then defend those lawsuits. http://www.supremecourt.gov/opinions/10pdf/10-277.pdf.
The Court described pay raises and promotions:
“In all, Wal-Mart operates approximately 3,400stores and employs more than one million people.
Pay and promotion decisions at Wal-Mart are generally committed to local managers’ broad discretion, which is exercised ‘in a largely subjective manner.’ 222 F. R. D. 137, 145 (ND Cal. 2004). Local store managers may increase the wages of hourly employees (within limits) with only limited corporate oversight. As for salaried employees, such as store managers and their deputies, higher corporate authorities have discretion to set their pay within preestablished ranges.
Promotions work in a similar fashion. Wal-Mart permits store managers to apply their own subjective criteria when selecting candidates as ‘support managers,’ which is the first step on the path to management. Admission to Wal-Mart’s management training program, however, does require that a candidate meet certain objective criteria, including an above-average performance rating, at least one year’s tenure in the applicant’s current position, and a willingness to relocate. But except for those requirements, regional and district managers have discretion to use their own judgment when selecting candidates for management training. Promotion to higher office—e.g., assistant manager, co-manager, or store manager—is similarly at the discretion of the employee’s superiors after prescribed objective factors are satisfied.”
The lead plaintiff, Betty Dukes, had been disciplined and demoted in a California Wal-Mart.
“Betty Dukes began working at a Pittsburg, California, Wal-Mart in 1994. She started as a cashier, but later sought and received a promotion to customer service manager. After a series of disciplinary violations, however, Dukes was demoted back to cashier and then to greeter. Dukes concedes she violated company policy, but contends that the disciplinary actions were in fact retaliation for invoking internal complaint procedures and that male employees have not been disciplined for similar infractions. Dukes also claims two male greeters in the Pittsburg store are paid more than she is.”
Claim of a “corporate culture” against females.
“Importantly for our purposes, respondents claim that the discrimination to which they have been subjected is common to all Wal-Mart’s female employees. The basic theory of their case is that a strong and uniform “corporate culture” permits bias against women to infect, perhaps subconsciously, the discretionary decision making of each one of Wal-Mart’s thousands of managers—thereby making every woman at the company the victim of one common discriminatory practice. Respondents therefore wish to litigate the Title VII claims of all female employees at Wal-Mart’s stores in a nationwide class action.
Class action rejected.
“Their claims must depend upon a common contention—for example, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of class wide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. *** The second manner of bridging the gap requires ‘significant proof’ that Wal-Mart ‘operated under a general policy of discrimination.’ That is entirely absent here.”
Legal Lessons Learned: Excellent decision to review with FD officers. Title VIII lawsuits continue to be filed by female firefighters alleging specific misconduct by a specific supervisor.
Article 7-10
GENDER DISCRIMINATION - OHIO SUPREME COURT HOLDS THAT NURSING HOME CAN ESTABLISH MANDATORY ONE YEAR OF SERVICE FOR ALL EMPLOYEES PRIOR TO TAKING ANY LEAVE, INCLUDING PREGNANCY LEAVE – NOT RECOMMENDED FOR FIRE & EMS DEPARTMENTS
On June 22, 2010, in McFee v. Nursing Care Mgt. of Am., Inc., 126 Ohio St. 3d 183, 2010-Ohio-2744, the Ohio Supreme Court (5 to 1) held that the trial judge in Licking County Court of Common Pleas properly dismissed the lawsuit of Tiffany McFee, who was fired when she took maternity leave from the Pataskala Oaks Care Center eight months after being hired.
The company’s Employee Handbook requires all employees to work for one year prior to being eligible for any leave. Ms. McFee was given a copy of the handbook when hired. Eight month after starting the job, she gave birth. The employer fired her three days later.
She filed a charge with the Ohio Civil Rights Commission, alleging her termination constituted unlawful sexual discrimination on the basis of pregnancy. The charge went to a hearing before an Administrative Law Judge, who ruled that company did not violate Ohio law. The Commission disagreed, and charged the company.
The company appealed to a judge in Licking County Court of Common Pleas, which found there was no violation of Ohio law. The Commission appealed to the Ohio Court of Appeals for Fifth District, which reversed (3 to 0) and held that Ohio antidiscrimination laws “expressly require that employers provide employees with a reasonable period of maternity leave.
The company appealed to the Ohio Supreme Court, which found that Ohio Revised Code 4112.02(A) requires that pregnant employees be “treated the same for employment-related purposes as employees who are not pregnant but who are similar in their ability or inability to work.”
Efforts by the Commission to require employers to grant maternity leave, including its regulation in Ohio Adm. Code 4112-5-05(G)(2), exceed the statutory authority established by the Ohio General Assembly. The Commission has “usurped the legislative function.” “The General Assembly sets public policy, and administrative agencies, when granted rulemaking authority, ‘develop and administer’ those policies.”
Likewise, under the federal Pregnancy Discrimination Act, the Congress has mandated that employers treat pregnant employees the same as non pregnant employees who are similarly situated with respect to their ability to work.”
The Court found that Pataskala Oaks’ policy was “pregnancy-blind.” “Every employee must reach 12 months of employment before becoming eligible for leave.”
Dissent by Justice Pfeifer: “The facts of this case are such that an ordinary citizen would think, ‘There ought to be a law against that.’ Until today, there was.”
Legal Lesson Learned: Ohio Fire & EMS department have a tremendous “investment” in their personnel, and hopefully none would ever adopt a policy like this nursing home.
Article 7-9
SEXUAL HARASSMENT - FIRE INSPECTOR WAS TERMINATED FOR “BIRTHDAY SPANKING” AND GRABBING CROTCH OF FEMALE - HAD TWO PRIOR COUNSELING SESSIONS - REINSTATED BY ARBITRATOR BECAUSE FD FAILED TO DOCUMENT PRIOR WARNINGS THAT HE WAS FACING TERMINATION
On Nov. 5, 2010, in City of San Jose v. IAFF Local 230, 2010 Cal. App. Unpub. LEXIS 8812, the California Court of Appeals for 6th District (3 to 0) refused to overturn the arbitrator’s decision, in an “unpublished decision” (courts cannot cite as precedence in other cases).
The Court described the background facts:
“In November 1990, Baldwin began working for the City as a firefighter. In July 2007, he was promoted to the position of fire inspector. In April 2008, a co-worker complained about Baldwin's inappropriate behavior toward herself and other female employees, prompting an investigation by the City. The investigation concluded with a 23-page report, issued in June 2008, which found that Baldwin had violated the City's policy against harassment by engaging in inappropriate behavior toward female co-workers, including both verbal comments and physical touching. In July 2008, Baldwin was fired for sexual harassment.”
The IAFF filed a grievance on behalf of the fire inspector, and it was heard by an arbitrator. The arbitrator issued a 26-page opinion, ordering the inspector returned to duty. The arbitrator first detailed the sexual harassment misconduct:
“[The arbitrator] concluded that Baldwin had ‘committed two levels of offenses under the City's sexual harassment policy.’ The first level, while less serious, involved ‘repeated, multiple, and pervasive acts of sexual harassment, or otherwise inappropriate behavior, toward four different female employees. This inappropriate behavior included, inter alia, placing his hands on female (and male) employees without their permission or imprimatur, touching or caressing the shoulders or backs of female employees and/or giving unsolicited massages or back rubs to female employees, lurking around employees' work spaces and scaring them, staring at female employees, asking women for their personal telephone numbers (in one case securing a female employee's personal telephone number without her consent), implying that he had relationships with female employees (some of whom were married or had known relationships with other men), and engaging in non-work related banter which could be construed as being of a sexual nature.’
The second level of offenses involved Baldwin's ‘more serious physical misconduct against [one co-worker] by administering birthday “spankings” in the workplace without her consent, forcibly kissing her on the mouth without her consent, and inserting his hand between her legs and grabbing her right thigh near her crotch without her consent.’”
Despite this conduct, the arbitrator ruled that in his opinion the first level of offenses warranted only a short suspension, and the kissing, spanking, and thigh-grabbing warranted only a 30-day suspension without pay:
“[T]he ultimate penalty of termination for all proven offenses, particularly in view of the City's prior lax disciplinary response . . . was contrary to the established principles of progressive discipline and was an excessive penalty in view of Grievant's tenure of service, his prior disciplinary record, and all the circumstances disclosed in this record."
The arbitrator ordered the City to “reinstate Grievant; however, upon his reinstatement Grievant shall be re-assigned to a different work site. . . . The City shall make Grievant whole for all lost wages (less the 30 work day suspension) and make him whole for all other lost contract benefits."
The arbitrator particularly focused on FD’s lack of documented discipline in the personnel file of the fire inspector.
“Baldwin had been informally counseled twice about sexual harassment, once in 1998 and again in 2002. But neither incident was ‘documented on the forms prescribed by the Fire Department's written policy for formal “discipline,” and neither [was] placed in his personnel file.’ Given that "weak response" to the prior allegations of sexual harassment, the arbitrator found, ‘there are serious questions as to whether the Department effectively warned Grievant that he would, in fact, be terminated for further offenses of this policy.’ The arbitrator thus concluded that "the ultimate penalty of termination for all proven offenses, particularly in view of the City's prior lax disciplinary response . . . was contrary to the established principles of progressive discipline and was an excessive penalty in view of Grievant's tenure of service, his prior disciplinary record, and all the circumstances disclosed in this record."
The City filed an appeal to California trial court, but the judge refused to set aside the Arbitrator’s decision. The City then filed an appeal to the Court of Appeals, which also refused to reverse the arbitrator. “The award here does not meet that standard. Although there is a well-defined public policy against sexual harassment in the workplace, that policy does not mandate automatic discharge of an offending employee, particularly where, as here, the discharge violates progressive discipline principles reflected in the governing labor agreement and the employer's own policies.”
Legal Lessons Learned: Document each counseling session, including warnings of termination for further violations.
Article 7-8
OHIO – GENDER DISCRIMINATION NOT PROVED - SUPERVISOR THOROUGHLY DOCUMENTED WORKPLACE PERFORMANCE PROBLEMS - COMPANY PROMPTLY INVESTIGATED HER COMPLAINTS TO HR - NO PROOF SHE WAS TERMINATED IN RETALIATION FOR CONTACTING OSHA
On Dec. 21, 2009 in Sharon Putney v. Contract Building Components, et al, 2009-Ohio-6718 (Court of Appeals for Third District, Union County), the Court (3 to 0) held that the trial court properly granted summary judgment for the employer. Stark Truss Company operates Contract Building Products (CBC is a supplier of building components). Ms. Putney’s supervisor was very thorough in documenting supervisor evaluations and warnings of Ms. Putney, who worked as an office manager at the CBC plant in Marysville, OH.
Shortly after Ms. Putney was hired, problems arose with her performance. She was issued multiple disciplinary actions in the form of written notices, and poor performance review from her direct supervisor, Plant Manager Paul Coulter, who also managed the Stark Truss facility at Washington Courthouse, OH.
For example, in September, 2006 she failed to attach purchase orders to two invoices, and was issued a written disciplinary notice that further problem could result in a 3-day suspension. When Ms. Putney sent a letter to the HR Manager alleging “harassment” and “hostile work place” by Paul Coulter, the matter was promptly investigated by HR employee Alice Wehrlin, who documented that the allegations were meritless.
Ms. Wehrlin also offered additional training of Ms. Putney, which she declined. In Oct. 6, 2006, she was suspended for 3-days after further clerical errors. She was warned that further mistakes could result in her termination.
She wrote another letter to the HR Manager, advising she had contacted OSHA in March, 2006, about diesel powered forklifts being used in an unventilated building, and she believed her suspension was in retaliation. Once again, HR employee Alice Wehrlin investigated, and again found her allegations to be meritless. In fact, OSHA had never disclosed the name of the complainant and no one knew Ms. Putney was the person who contacted OSHA.
Upon he return to work after the 3-day suspension, the company required her to take additional training. She was also placed on “probation” and warned that failure to improve her performance would result in termination. On Feb. 2, 2007 she was terminated.
The Court of Appeals held that the trial court properly dismissed her lawsuit claiming gender discrimination:
“Stark Truss and CBC have articulated a legitimate, non-discriminatory reason for her termination, which Putney cannot show is false. As previously noted, throughout this litigation, including the motion for summary judgment, Stark Truss and CBC have maintained that Putney was disciplined and ultimately terminated due to her inability to perform her job in a satisfactory manner, and they have provided documentation and affidavits to support this position. This is a legitimate, nondiscriminatory reason for her termination.”
Legal Lessons Learned: FDs should thoroughly document employee poor job performance, and corrective action plans.
Article 7-7
OHIO: PREGNANCY DISCRIMINATION – EMPLOYER IMPROPERLY TERMINATED AN EMPLOYEE WHO NEEDED TIME OFF FOR MEDICAL REASONS, EVEN THOUGH SHE HAD NOT WORKED FOR A FULL YEAR AND THEREFORE HAD NO SICK LEAVE OR OTHER LEAVE
On March 11, 2009, in Nursing Care Management Of America, Inc., d.b.a. Pataskala Oaks Care Center v. Ohio Civil Rights Commission, the Court of Appeals for 5th District, Licking County, 181 Ohio App.3d 632, 2009-Ohio-1107, held that the employer violated Ohio law by terminating a pregnant employee.
Tiffany McFee is a licensed practice nurse, who was hired by the Care Center on June 9, 2003. The employer authorized employees, after reaching 1 year of employment, with up to 12 weeks of leave. Ms. McFee was with the Care Center for 8 months, and on Jan. 26, 2004 she presented a doctor’s note that she was medically unable to work due to pregnancy-related swelling, and requested leave until six-weeks after the birth of her child.
Ms. McFee gave birth on Feb. 1, 2004. The Care Center, however, terminated her three days later since she was not entitled to any leave until 1 year of employment. The Director of Nursing called her on Feb. 25, 2004 and offered her a full-time, day-shift job; McFee never returned the call.
McFee filed a charge of pregnancy discrimination with the Ohio Civil Rights Commission, which after an investigation found "probable cause" that Care Center violated Ohio Rev. Code 4112. The matter was heard before an Administrative Law Judge (ALJ), who recommended that the Care Center did not violate the law. The Civil Rights Commission rejected the ALJ’s recommendation. The Care Center appealed to the Court of Common Pleas, where a judge reversed the Commission and held that the Care Center did not violate the law. The Commission appealed to the 3-judge Court of Appeals.
The Court of Appeals held:
"[W]e find that the commission interpreted and applied the relevant statutes in a lawful and proper way, and its final order should therefore be affirmed."
In addition, the Court looked at the Commission’s regulations. Ohio Administrative Code 4112-5-05(G) also explicitly provides that termination of an employee "disabled due to pregnancy" is prohibited, even if the employer provides no maternity leave or insufficient maternity leave.
The Court concluded: "In this case, it is undisputed that Pataskala Oaks had no maternity leave available to McFee at the time of her pregnancy disability. Therefore, the commission is correct in relying on provision (G)(2)."
Legal Lessons Learned: Ohio Fire & EMS Departments should not terminate a pregnant employee who medically need time off, even if she has no sick leave, without careful review with legal counsel.
Article 7-6
OHIO: SUPREME COURT OF OHIO - INVESTIGATIVE REPORT BY ATTORNEY IS NOT PUBLIC RECORD UNDER OHIO PUBLIC RECORDS ACT
On April 21, 2009, in State ex rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port Authority, the Court held (7 to 0) in a per curiam opinion (not issued by individual judge) that an investigative report prepared by a law firm may not be released to the newspaper or others. This is a useful decision for Fire & EMS departments seeking to conduct a sensitive internal investigation.
In July 2008 the Mayor of Toledo informed the Port Authority and other governmental entities operating as a consortium to receive federal funds, that their administrator had been engaged in an extramarital affair with the female lobbyist for the consortium. There was a concern that the administrator may have improperly funneled money to the lobbyist.
The Port Authority directed their outside law firm to conduct an investigation. The Chairman of the Port Authority anticipated that some staff employees would be reluctant to speak openly and candidly unless the confidentiality of the investigation could be assured.
The investigative report was delivered to Port Authority board members. Each received a numbered copy and was advised that it was confidential and could not be shared with others. On August 1, 2008, the administrator was terminated by the Board.
The Toledo Blade newspaper sought a copy of the report, which the Board refused based on attorney-client privilege. The Board did share documents the attorneys had reviewed in preparing the report. The newspaper filed a mandamus action directly with the Supreme Court of Ohio, seeking the report and attorneys fees. A sealed copy of the report was provided to the Court.
The Court held that the report is not a public record. The Court rejected the newspaper’s claim that they should receive the factual portions of the report, and only the legal advice section should be private.
"The Blade’s argument lacks merit. ‘In Ohio, the attorney-client privilege is governed by statute, R.C. 2317.02(A), and in cases that are not addressed in R.C. 2317.02(A), by common law.’ " [Case citations omitted.]
"[W]e conclude that the factual investigation conducted by attorney Gregory was incident to or related to any legal advice that the attorneys hired by the port authority would give concerning the mayor’s allegations of misconduct by the port authority [administrator]."
The Court recognized the importance of keeping the report confidential:
"As the uncontroverted evidence established, because port authority staff members knew that Grisby was an attorney, they felt free to speak openly and candidly and with the understanding that their comments and the investigation were serious legal matters that could carry serious legal consequences."
Legal Lessons Learned: Fire & EMS Departments that wish to investigate sensitive matters should consider retaining legal counsel to conduct the investigation.
Article 7-5
U.S. SUPREME COURT – SEXUAL HARASSMENT – EMPLOYEES WHO COME FORWARD DURING AN INTERNAL INVESTIGATION OF A SUPERVISOR ARE ALSO PROTECTED FROM RETALIATION
On Jan. 26, 2009, in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, the Court held (9 to 0) that not only are employees protected from retaliation if they make an internal complaint of sexual harassment, they are similarly protected in answering questions about a supervisor during an internal investigation. Full opinion can be read at:
http://www.supremecourtus.gov/opinions/08pdf/06-1595.pdf.
Justice Souter [who retired at the end of the Term] wrote the opinion:
"In 2002, respondent Metropolitan Government of Nashville and Davidson County, Tennessee (Metro) began looking into rumors of sexual harassment by the Metro School District’s employee relations director, Gene Hughes. When Veronica Frazier, a Metro human resources officer, asked petitioner Vicky Crawford, a 30-year Metro employee, whether she had witnessed ‘inappropriate behavior’ on the part of Hughes… Crawford described several instances of sexually harassing behavior: once, Hughes had answered her greeting, ‘Hey Dr. Hughes, what’s up?,’ by grabbing his crotch and saying ‘[Y]ou know what’s up’; he had repeatedly ‘‘put his crotch up to [her] window’; and on one occasion he had entered her office and ‘grabbed her head and pulled it to his crotch.’" [Footnotes and citations omitted.]
The employer argued that Ms. Crawford didn’t complain of harassment because she too participated in workplace inappropriate comments:
"Metro suggests in passing that it was unclear whether Crawford actually opposed Hughes’s behavior because some of her defensive responses were ‘inappropriate,’ such as telling Hughes to ‘bite me’ and ‘flip[ping] him a bird.’ Brief for Respondent 1–2 (internal quotation marks omitted). This argument fails not only because at the summary judgment stage we must ‘view all facts and draw all reasonable inferences in [Crawford’s] favor,’ Brosseau, 543 U. S., at 195, n. 2, but also because Crawford gave no indication that Hughes’s gross clowning was anything but offensive to her."
Two other employees were also fired:
"Two other employees also reported being sexually harassed by Hughes. Although Metro took no action against Hughes, it did fire Crawford and the two other accusers soon after finishing the investigation, saying in Crawford’s case that it was for embezzlement. Ibid. Crawford claimed Metro was retaliating for her report of Hughes’s behavior and filed a charge of a Title VII violation with the Equal Employment Opportunity Commission (EEOC), followed by this suit in the United States District Court for the Middle District of Tennessee. Ibid."
Congress has two anti retaliation provisions in Title VII:
"The Title VII anti retaliation provision has two clauses, making it ‘an unlawful employment practice for an employer to discriminate against any of his employees . . . [1] because he has opposed any practice made an unlawful employment practice by this subchapter, or [2] because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.’ 42 U. S. C. §2000e–3(a). The one is known as the ‘opposition clause,’ the other as the "participation clause," and Crawford accused Metro of violating both."
Both the trial judge and the 6th Circuit Court of Appeals dismissed Vicky Crawford’s lawsuit because she had not made any internal complaint [not "opposed any practice’] and because she was not participating in an EEOC investigation when she spoke out. The Supreme Court disagreed:
"The statement Crawford says she gave to Frazier is thus covered by the opposition clause, as an ostensibly disapproving account of sexually obnoxious behavior toward her by a fellow employee, an answer she says antagonized her employer to the point of sacking her on a false pretense. Crawford’s description of the louche goings-on would certainly qualify in the minds of reasonable jurors as ‘resist[ant]’ or ‘antagoni[stic]’ to Hughes’s treatment, if for no other reason than the point argued by the Government and explained by an EEOC guideline: ‘When an employee communicates to her employer a belief that the employer has engaged in . . . a form of employment discrimination, that communication’ virtually always "constitutes the employee’s opposition to the activity.’ Brief for United States as Amicus Curiae 9 (citing 2 EEOC Compliance Manual §§8–II– B(1).
In a footnote, the Court further explained:
"We have never suggested that employees have a legal obligation to report discrimination against others to their employer on their own initiative, let alone lose statutory protection by failing to speak. Extending the mitigation requirement so far would make no sense; employees will often face retaliation not for opposing discrimination they themselves face, but for reporting discrimination suffered by others. Thus, they are not ‘victims’ of anything until they are retaliated against, and it would be absurd to require them to ‘mitigate’ damages they may be unaware they will suffer."
Legal Lessons Learned: In internal investigations, both the complainant and others who offer supporting information are protected from retaliation. In the fire service, subsequent discipline of a "complainant" or an employee who confirms a complainant’s allegations must be thoroughly documented and independent of the initial investigation. Termination or other significant discipline of such "protected" employees should only be done after careful review with competent legal counsel.
Article 7-4
OHIO - FEMALE TOLEDO CAPTAIN AND TWO FEMALE FF CAN PROCEED WITH HOSTILE WORK ATMOSPHERE LAWSUIT – ALLEGED COMMENTS OF SENIOR OFFICERS – ARBITRATOR ALREADY REINSTATED TERMINATED CAPTAIN
On July 18, 2008, in Captain Carla Strachura et al. v. City of Toledo, the Ohio Court of Appeals for the Sixth District, http://apps.co.lucas.oh.us/Courts/Appeals/DecisionsPDF/3763.pdf , held (3 to 0) that the gender discrimination lawsuit filed by three female FF was improperly dismissed by the trial judge, and should proceed to trial.
[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]
Article 7-3
OHIO – WORKPLACE HARASSMENT OF HOMOSEXUAL – EMPLOYER FAILED TO TAKE ADEQUATE STEPS TO PREVENT IT AND MUST STAND TRIAL
On June 29, 2007, in Barry P. Tenney v. General Electric, 2007 Ohio 3367, 2007 Ohio App. LEXIS 3114, the Ohio Court of Appeals for Trumbull County held that a homosexual employee at the GE Niles/Mahoning Glass Plant is entitled to a trial in his claim for intentional / reckless infliction of emotional distress since it appears that GE managers “allowed the actions to persist and accumulate over the years Tenney has been employed there.”
[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]
Article 7-2
Ohio Civil Rights Commission – Pregnancy Discrimination – Light Duty
On June 26, 2007, the Ohio Civil Rights Commission refilled its proposed new pregnancy regulations that will impact every employer in Ohio, including Fire & EMS Departments. Under these new regulations, no employer in Ohio will be allowed to limit or alter a pregnant employee's duties (including pregnant firefighters / EMS personnel) without an “objective, verifiable safety justification.”
[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]
Article 7-1
KANSAS – SEXUAL HARASSMENT – 315 POUND FIREFIGHTER RESIGNS BECAUSE OF HIS MALE CAPTAIN'S MISCONDUCT - CASE DISMISSED SINCE HE RESIGNED BEFORE GIVING FIRE CHIEF TIME TO INVESTIGATE
On September 26, 2006, a federal judge in Kansas, in Richard A. Beseau v. Fire District No. 1 of Johnson County, Kansas, Case No. 05-2162, 2006 U.S. Dist. LEXIS 69447, granted the FD's motion for summary judgment, since “the plaintiff did not consider the option of working for a supervisor other than [his] Captain. ” “The court has no reason to believe that a reasonable person would have considered this option to be intolerable or even to be a punishment for complaining about harassment.”
Richard Beseau, 6’2” tall and 315 pounds, was hired as a full-time FF on March 27, 2004, after having served as a volunteer for the prior year. He was assigned to a shift under a Captain that he had worked with in the past, who commonly used profane language, and crude, sexual jokes.
Beseau worked a 24-hour shift, where all the career FF were male; there were also 35 volunteers, with only one female. “It was common in the privacy of the station for firefighters to engage in cursing, jokes and sexual innuendo.”
Unfortunately for Beseau, he became the focus of his Captain's jokes and misconduct. The court wrote that it was not homosexual in nature, noting that both men were married, and the Captain had two children. For example:
On Beseau’s second 24-hour shift, the Captain allegedly “jumped into plaintiff's bed and acted liked he was having sex with someone. This lasted for ten to 15 seconds. Plaintiff did not report this to anyone.”
On May 11, 2004, the Captain asked Beseau if he was right or left-handed. When the FF told him he was right-handed, the Captain joked, he must “work out with your right hand.” The court wrote, by “work out” the Captain meant “masturbate” and the Captain made motions with his hand to simulate masturbation. Plaintiff did not report this to anyone.
On June 8, 2004, the Captain told Beseau, “You think about me when having sex with your wife, don't you. I will be on your shoulder when you're having sex with your wife, I'll be telling you to go right or left.”
On June 16, 2004, the Captain and Beseau took a tour of a county jail, and when some inmates commented on the 315-pound FF, his Captain said “I think the inmates like you. We should lock you in the cell with them so they can have sex with you.” The Captain also joked with a Deputy Sheriff, that Beseau “works out” when he goes home, and made a gesture to simulate masturbation.
On June 23, 2004, the Captain touched Beseau's shoulder in a seductive manner and said, “ I am a touchy-feely type of guy.” Plaintiff told him to stop. Later that day the Captain told a volunteer to touch Beseau because he liked to be touched.
The Captain's misconduct really upset Beseau; prior to leaving for work he would sometimes cry for 20 minutes.
The Fire Chief and Deputy Chief's office was in the same fire station where plaintiff was assigned. He finally told the Fire Chief he intended to resign, and for the first time informed the chief about the Captain's misconduct. The Chief urged him to take a couple of days off with pay to think about it, and promised to start an investigation, and to reassigned Beseau to another shift. Plaintiff returned in a couple of days and submitted his resignation.
The federal district judge dismissed the lawsuit, finding that Beseau failed to show that the Captain's conduct created such an abusive working environment to justify an “objective” person to resign. In order to establish a claim for constructive discharge, a “plaintiff must demonstrate that he or she explored options short of resignation or that such exploration would have been futile.”
Legal Lessons Learned: FDs with an effective internal complaint process can avoid liability if employees fail to complain; horseplay that goes over the line, particularly by an officer, must be prevented.
NEWSLETTER IS NOT PROVIDING LEGAL ADVICE;
Posted by UC solely as information and for the benefit of students.