Retaliation

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Winning Harassment Claims in the #MeToo EraIn this #MeToo era, employers are, understandably, a little sensitive when someone raises a claim of harassment. Even with the heightened sense of peril, companies should remember that if they are doing the right thing—having effective policies in place and handling complaints appropriately—they can still prevail. A recent decision, Peebles v. Greene County Hospital Board and Elmore Patterson, makes this abundantly clear.

The Facts

Elmore Patterson was the CEO of Greene County Hospital’s (GCH) residential care facility. Beginning in November 2013, Wennoa Peebles was his executive assistant, as well as an accounts payable clerk in the business office. According to Peebles, Patterson created a hostile work environment in a number of ways, including his use of profanity, demeaning comments (telling Peebles she was “just part of the room” and “not to speak,” referring to female employees as “opossums” and that he would not sleep with the “opossums”), and occasional, off-handed sexual comments (such as comments about paddling a female employee’s rear end and bosom).

Peebles, who was not the only employee who raised concerns about Patterson, complained to a number of GCH board members about his behavior. In October 2015, GCH got a letter from Peebles’ lawyer noting that Peebles’ had complained about her work environment, was experiencing discrimination and retaliation, and was filing an EEOC charge. She filed the charge on November 4, 2015, alleging sex discrimination, retaliation, and a hostile work environment. About 10 days later, GCH told Peebles she should submit any complaints about her work environment to a designated board member. GCH also gave Peebles the option of transferring to her prior position (certified nursing assistant) at no loss of pay.

In January 2016, Patterson suspected that Peebles had disclosed board member email addresses. When he asked Peebles about it, she denied doing so. Patterson did some additional digging and concluded that not only had she disclosed the emails, she had lied to him about it and terminated her. Not surprisingly, Peebles believed that GCH terminated her not because of her disclosure of the email addresses but because of her protected activity.

Summary Judgment for the Employer

The district court granted summary judgment to GCH on both the harassment and retaliation claims. With regard to Peebles’ harassment claim, GCH apparently conceded that Peebles had established that she belonged to a protected group, that she was the subject of unwelcome harassment, and that the harassment was based on her sex. The court found, however, that Peebles had not established that the harassment was sufficiently severe or pervasive enough to alter the terms and conditions of employment to create a discriminatory or abusive working environment. The court explained that there are four factors to consider in determining whether conduct is severe or pervasive enough to permeate a workplace:

  • The frequency of the conduct
  • The severity of the conduct
  • Whether the conduct is physically threatening or humiliating, or a mere offensive utterance
  • Whether the conduct unreasonably interferes with the employee’s job performance

On balance, the court found that Patterson’s conduct over the two-year period, which was described in the opinion as hardly “boss of the year” material, was not sufficiently severe or pervasive. Accordingly, the court granted summary judgment in favor of GCH.

The court went on to find that Peebles failed to establish a case of retaliation, and GCH’s reasons for terminating her employment were legitimate and had nothing to do with her complaints about Patterson.

Takeaways

So, what can we learn? GCH did a lot of things right and still ended up getting sued—but they won. Here are a few things that employers should consider when a harassment complaint (or something that could be a harassment complaint) arises:

  • Effectively manage the complaints immediately. As soon as Peebles made complaints about Patterson, GCH addressed them, going so far as to designate a board member as a contact. GCH did this even though at least some of Peebles’ concerns were about bad behavior that did not clearly fall in the sexual harassment realm.
  • Take steps to stop any alleged harassment. In addition to a complaint procedure, GCH offered Peebles a transfer so she would not have to work with Patterson. While this is not always appropriate, employers should consider whether it is a viable option. You would not want to involuntarily transfer someone who complained, but giving them the option of getting away from the alleged harasser may be a good option to retain an employee and prevent a retaliation complaint. Of course, that is not what happened in this case, but it is still a good idea.
  • Don’t limit the assessment to the legal standard. Although the court relied on whether the behavior was sufficiently severe and pervasive enough to create a hostile work environment, employers should not limit their internal assessment to this legal standard. Behavior may not rise to the level of legal harassment but it can still violate a company’s harassment policy.

Employee Handbook Leads to Dismissal of FMLA Claims against Tennessee EmployerMost, if not all, employers provide their employees with handbooks that explain the policies and procedures that govern the employment relationship. Because this practice is standard, many employers likely forget how critical it is to have clear, well-known policies that are consistently followed. The recent decision in Everson v. SCI Tennessee Funeral Services, LLC reminds employers of the significance of employee handbooks and how they can prevent extensive litigation.

Background

Ommer Everson worked as a funeral director for SCI Tennessee Funeral Services (SCI). Although Everson was diagnosed with Meniere’s disease during his employment, it did not affect his work until he needed some time off for outpatient ear procedures. Before his procedure in 2010, Everson requested a week to 10 days off, which his supervisor granted. In 2014, Everson requested an afternoon off for another procedure and his supervisor again granted the request. On January 9, 2015, he requested a week off for a third procedure and his supervisor responded that it was fine—“whatever time you need.”

However, Everson never took that week off because he was terminated two days later for violating SCI’s refrigeration policy. Specifically, SCI determined that Everson left an unembalmed body overnight without refrigeration.

Everson sued SCI alleging violations of the Family and Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA). Regarding the FMLA, Everson specifically alleged that SCI had retaliated against him for requesting FMLA leave and interfered with the exercise of his rights.

Middle District of Tennessee Grants Summary Judgment to SCI on FMLA Claims

SCI moved for summary judgment, arguing that it did not interfere with Everson’s FMLA rights because Everson failed to follow SCI’s notice requirements in requesting leave. SCI’s employee handbook outlined the procedure—employees needing leave were to contact the SCI Leave and Disability Center. In response, Everson asserted that the FMLA did not require him to invoke the FMLA by name. Providing notice to his supervisor for a procedure related to Meniere’s disease was sufficient to notify SCI that Everson was invoking FMLA protection.

Siding with SCI, the Middle District of Tennessee granted summary judgment, holding that the 2009 amendment to 29 C.F.R. § 825.302(d) “explicitly permit[ted] employers to condition FMLA-protected leave upon an employee’s compliance with the employer’s usual notice and procedural requirements, absent unusual circumstances.” The court explained that despite the fact that Everson had received, read, and signed SCI’s employee handbook, he never requested FMLA leave or asked anyone at SCI for FMLA leave. He also did not identify any unusual circumstances that would have prevented him from complying with SCI’s notice requirement. Because Everson failed to comply with SCI’s policy for requesting FMLA leave, the court ruled that he could not establish a prima facie case for FMLA interference. Additionally, the court ruled that Everson’s claim of FMLA retaliation failed because his anticipated leave was not a protected activity under the FMLA. Since SCI did not have proper notice of Everson’s intent to take FMLA leave, Everson never actually engaged in an activity protected by the FMLA.

The court went on to deny summary judgment to SCI regarding Everson’s ADA claim, but that is a much longer story for a different post.

Takeaways

Never forget the power of the employee handbook and other well-crafted policies. In this case, the employer set out a clear path to request FMLA leave, and the court determined that the plaintiff did not use it. To get the most from those policies, you need to be sure that you can prove that your employees know about them. Here are some ideas:

  • Make sure that every employee receives a copy of your employee handbook and acknowledges in writing that they have both read the handbook and addressed any questions or concerns that they may have.
  • For policies regarding employment laws that may be more complex (g., requesting FMLA leave, requesting reasonable accommodations, requesting or reporting overtime, etc.), consider having employees read, acknowledge, and sign a separate document in addition to the handbook acknowledgement to ensure that they understand their responsibilities, as well as your responsibilities as their employer.
  • Send periodic messages or post reminders about more complicated policies—such as requesting FMLA leave or reporting harassment. This will give you another way to prove that employees understand how the policies work.

Two Guys Walk into a Wine Bar… Not a Joke as Another Court Recognizes Claim for Harassment Based on Sexual OrientationI have told clients for years that they ignore claims based on sexual orientation at their peril, and another court is backing me up. An Arizona federal district court just ordered a wine bar to pay real money ($100,000) to two servers based on claims about sexual orientation harassment and retaliation.

Curiously, this was a default judgment, so we have no idea what the employer’s side of this story is. With that caveat, two servers, Wyatt Lupton and Jared Bahnick, filed charges with the EEOC claiming that 5th & Wine allowed its management and employees to harass them because their actual or perceived sexual orientation. According to Lupton, he was fired after he said he planned on taking legal action. The EEOC found cause and ultimately filed a lawsuit on their behalf. The company did not answer, and the EEOC obtained a default judgment—money for Lupton and Bahnick, as well as injunctive relief.

Regardless of what actually happened at this wine bar, employers should be careful when confronted with claims of discrimination or harassment based on sexual orientation or transgender status. Even though Congress has not added these as protected categories under Title VII, many courts are treating them as covered. In light of that trend, cautious employers should consider the following:

  • If an employee reports that he or she is being harassed because of sexual orientation or transgender status, treat it like you would any other harassment complaint.
  • Consider revising EEO and harassment policies to explicitly include sexual orientation and transgender status as protected categories.
  • Make sure supervisors and managers understand that ignoring these issues could land the company in court.