Evidence of "serial harassment" permitted in sex harassment claim

Yesterday we looked at Hawkins v. Anheuser-Busch's ruling on coworker retaliation. (See 6th Circuit recognizes claim for coworker retaliation). Today, we'll examine another aspect of this opinion, the issue of whether a harassment plaintiff can rely on evidence of the earlier harassment of others by the same coworker. Before we examine the specific issue, it's helpful to look at some additional facts specific to the harassment claims.
Anheuser-Busch first received a complaint of harassment concerning Bill Robinson in 1993. At that time, Diana Chiandet (not a plaintiff in the lawsuit), who worked on the same line as Robinson, complained that she had received 3 harassing and threatening anonymous notes. The notes included gems such as, "If you want something Hot and Hard call me.... They call me Mr. Big Daddy," and "I think it's about time we got together so we can have a good time all nite [sic] long. I no [sic] you like it long and Hard. And I have tools to do that all nite [sic] thing. P.S. Don't worry I will make real good to you. I no [sic] what you like PAIN." Shortly after Chiandet complained her car was sideswiped at work. A handwriting expert confirmed that Robinson was the author of the notes, a fact he also admitted. The brewery terminated his employment, but he was reinstated following a union grievance.
Jackie Cunningham, one of the plaintiffs, first complained about Robinson in 1999. Her allegations included:

1. During a training session in 1999, Robinson sang a rap song to her with the lyrics: "Baby, won’t you back that thing up," and then held money in his hand and said: "Is that what it's gonna take?"
2. Robinson tried to put his hand on her shoulder, but she moved away.
3. Robinson said: "I will suck your p***y but you got to suck my d**k."
4. Robinson caressed her back and she responded by screaming at him: "Don't touch me."
5. Robinson told her to come over to his vehicle at work and, when she refused, he chased her around and tried to grab her as she ran away.
6. Robinson asked her: "Why don't you just suck my d**k?"
7. Robinson told Cunningham that he was getting rid of his girlfriend, and asked her: "Why don't you just make up your mind?" while trying "to feel on her."
8. Robinson would harass her "on and off" and would "push on and on."

Cunningham repeatedly complained to her supervisor and was ultimately transferred to a different line.
Cherri Hill starting working on the same line as Robinson in January 2000, and alleged that Robinson began harassing her that November. Her allegations included:

1. Robinson touched her arms, rubbed her shoulders, and walked up close behind her, all while making "lewd and explicit" comments.
2. When Hill asked Robinson to stop, he said that he knew she "liked it" and that he "wanted to have sex" with her.
3. Robinson would walk close to her, touch her behind, and that on one occasion he rubbed against her with "his private area" and grabbed her around the waist.
4. On three or four occasions Robinson told her "she had big breasts" and a "big butt."
5. On another occasion, Robinson told her "he wanted to f**k" her and said, "I bet you have some good p***y and I know that you would like this. You should let me take you away from your boyfriend."
6. Robinson generally made lewd and sexual comments "all the time."

Recall that Hill complained to management and her car was set on fire. The brewery conducted an investigation and concluded that "Robinson did behave in a sexually inappropriate manner with both Cherri Hill and Jackie Cunningham." Remarkably, however, the brewery did not discipline Robinson. Instead, it sent Hill and Cunningham each a letter stating that their allegations were unsubstantiated, that corporate policy prohibited retaliation, and that each could contact management with any questions.
In support of their harassment claims, Cunningham and Hill each sought to rely on evidence of Robinson's earlier harassment of Diana Chiandet. Despite its remoteness in time (6 or 7 years), the Court permitted reliance on the earlier harassment as evidence of Cunningham's and Hill's hostile environment:

When determining the relative weight to assign similar past acts of harassment, the factfinder may consider factors such as the severity and prevalence of the similar acts of harassment, whether the similar acts have been clearly established or are mere conjecture, and the proximity in time of the similar acts to the harassment alleged by the plaintiff.
The degree to which a past act of harassment is relevant to the determination of whether a plaintiff's work environment is hostile is a fact-specific inquiry that requires courts to determine the relevancy of past acts on a case-by-case basis. In general, however, the appropriate weight to be given a prior act will be directly proportional to the act's proximity in time to the harassment at issue in the plaintiff's case. The further back in time the prior act occurred, in other words, the weaker the inference that the act bears a relationship to the current working environment. On the other hand, more weight should be given to acts committed by a serial harrasser if the plaintiff knows that the same individual committed offending acts in the past. This is because a serial harrasser left free to harass again leaves the impression that acts of harassment are tolerated at the workplace and supports a plaintiff's claim that the workplace is both objectively and subjectively hostile.

Both Cunningham and Hill testified at deposition that they had heard about Robinson's prior harassment of Chiandet. The Court permitted the evidence because it gave credence to the plaintiffs' claim that Robinson was a serial harasser who regularly intimidated women at work. While Chiandet's incidents were remote in time, they were entitled to some proportional consideration because of their similarity.
I have serious reservations about the relevance of harassment suffered by a different employee 7 years prior to the at-issue harassment. For one thing, even under Ohio's generous 6-year statute of limitations, Chiandet's ability to file a lawsuit had run out. More to the point though, neither Cunningham nor Hill were even employed at the brewery when the harassment of Chiandet occurred. Nevertheless, the Court permitted the evidence to be considered because the plaintiffs had heard about the harassment, and could process that second-hand information to reach subjective conclusions about the hostility of the work environment. Employers, however, are entitled to some degree of certainty, and it is unreasonable to dredge up 7-year-old allegations that were already investigated, and for which the harasser had already been terminated and reinstated per his labor union. That unreasonableness is magnified by the fact that neither plaintiff was even employed while Chiandet was being harassed.
This case exemplifies the expression "bad facts make bad law." The allegations of harassment were so outrageous, and Anheuser-Busch's lack of response so negligent, that the Court was looking for anything to support its decision. Now, however, companies are faced with the prospect of never being to close the book on old allegations of harassment, as plaintiffs will be able to reach back in time to recycle stale claims into
Tomorrow, we'll finish up our look at Hawkins v. Anheuser-Busch and glean some lessons from the brewery's response and lack of response to the various harassment complaints.

6th Circuit recognizes claim for coworker retaliation

Employment discrimination laws prohibit retaliation against an employee who engages in protected activity. What happens, though, when it is not a manager or supervisor who is retaliating against an employee, but a coworker? For example, can an employer be held liable when a non-supervisory or non-managerial employee against whom a complaint of harassment or discrimination been lodged undertakes a plan to take revenge on the complaining party?

In Hawkins v. Anheuser-Busch, Inc., the 6th Circuit determined that "in appropriate circumstances, Title VII permits claims against an employer for coworker retaliation." To determine whether such "appropriate circumstances" exist to hold a company is liable for an employee's retaliation against a coworker, courts must determine if:

1. the coworker's retaliatory conduct is sufficiently severe so as to dissuade a reasonable worker from making or supporting a charge of discrimination;
2. supervisors or members of management have actual or constructive knowledge of the coworkers' retaliatory behavior; and
3. supervisors or members of management have condoned, tolerated, or encouraged the acts of retaliation, or have responded to the plaintiff's complaints so inadequately that the response manifests indifference or unreasonableness under the circumstances.

The facts that pertain to Cherri Hill's retaliation claim are pretty outrageous. Bill Robinson frequently harassed many of his female coworkers with lewd, graphic, and often threatening language. After Hill reported that Robinson had harassed her, her car was set on fire. Following the close of its investigation into Hill's allegations, Anheuser-Busch corporate headquarters received an anonymous letter criticizing the investigation. The letter stated that "fellow employees on the line are intimidated from telling the truth because they are well aware of what [Robinson] is capable," and that employees were "afraid to get involved" because "bad things" happened to women who made accusations against Robinson. The letter recounted specific allegations of violence against women at the brewery, including Hill's car fire, that Robinson had threatened to "kill that Bitch" (meaning Hill) if he lost his job, and that the tires of another employee's car were slashed after she threatened to report Robinson for harassment. The letter also stated that Robinson had bragged that he had slashed the tires to "repay the woman for telling on him," and that it was "this type of retribution" that "keeps people from speaking out" against him.

In response, the brewery did nothing. It took no action against Robinson, did not reopen the investigation to interview additional employees, did not warn Hill, and did not set up a confidential way for employees to report harassment by Robinson. In fact, Robinson remained employed for another 3 years, until he was terminated for harassing another employee.

The 6th Circuit held that Hill's case presented appropriate circumstances for permitting her coworker retaliation claim to proceed. Anheuser-Busch management knew of the allegation that Robinson had set fire to Hill's car in retaliation for her complaint and that he had threatened to kill Hill if he lost his job. The Court found that "Robinson's threatening behavior and violent acts of retaliation were common knowledge to both coworkers and supervisors at the brewery," and that "Hill's allegations might ... have been substantiated by a more complete investigation."

The Court detailed Anheuser-Busch's failure in responding to Hill's complaint of retaliation:

Anheuser-Busch ... failed to show that it responded to Hill's complaint of retaliation in any meaningful way. The two members of management to whom Hill reported the fire ... allegedly not only failed to investigate Hill's allegation that Robinson had retaliated against her, but chided her for attempting to make a report. The brewery never bothered to investigate the incident, monitor Robinson, or create a safe environment for harassment complaints. A jury could find that, given what management knew about the fire, the brewery had an obligation to investigate the incident.... [T]he brewery never bothered to investigate Hill's allegation that Robinson was continuing to harass her in retaliation for her report. The serious nature of Hill's allegation could lead a jury to find that failing to investigate the incident and issuing a letter solely to Hill, as opposed to Robinson, was an insufficient response.

There are, therefore, sufficient facts in the record upon which a jury could find that Anheuser-Busch's failure to investigate the complaint of Robinson’s violent act of retaliation was both indifferent and unreasonable.

The lesson for businesses is an important one. A company cannot turn a blind eye to employee complaints, whether of harassment or retaliation, and expect to get a pass from a court. Burlington Northern made clear that any act that would "dissuade a reasonable worker from making or supporting a charge of discrimination" is considered adverse and therefore actionable as retaliation. Employers must be mindful not only of harassment complaints, but also retaliation complaints. One would be hard-pressed to argue that arson would not "dissuade a reasonable worker from making or supporting a charge of discrimination." Armed with information of Robinson's culpability for the fire, among other things, the brewery simply could not sit on its hands and do nothing. As long as courts make an honest assessment of whether a particular case presents the "appropriate circumstances" to hold an employer liable for retaliation by a coworker, this rule makes sense.

Later this week, I'll take a look at the other aspects of the Hawkins decision -- whether other acts of harassment unrelated to the plaintiff are relevant to a harassment claim, and the appropriateness of an employer's response to an internal harassment complaint.

Postal worker illustrates problem of employee jury duty fraud

Because it's illegal to fire an employee who misses work for jury duty, companies may be more lax in their examination of jury summonses as excuses for employee absences. As this article from February 14th's Washington Post illustrates, companies should not necessarily accept employees at their word, and when circumstances suggest, dig a little deeper to determine whether that employee is legitimately excused from work.

Neither wind nor rain nor even ice storms kept Joseph S. Winstead from doing his job as a mail processor for the U.S. Postal Service in Washington. But pretending that he was serving on a jury sure did.

Winstead spent 144 days goofing off from his work at the Brentwood mail processing plant -- by telling his boss that the rigors of jury service prevented him from sorting the mail. Over the course of Winstead's hoax, from fall 2003 to fall 2004, court papers show, the Southeast Washington resident collected $31,000 in pay from the U.S. government that he didn't earn.

He listened to months of evidence in a trial of an alleged drug gang. But there were days when the court was in recess, and the jury did not meet -- and Winstead never reported to the Postal Service, which was picking up his salary.

Winstead didn't stay on the jury long enough to render a verdict, getting excused just before deliberations started in April 2004. Even though he no longer was going to court, Winstead continued for months to pretend that he was still serving on that jury, drawing his federal salary, prosecutors said.

And he might have gotten away with it, court papers show -- if he hadn't decided to repeat the scam.

In April 2006, Winstead got another summons and once again he wound up on a federal jury at the courthouse in Washington. This time, he submitted paperwork to his bosses showing he had been serving for 40 days when he really worked a fraction of that time.... Winstead confessed that he fabricated courthouse paperwork and sent it to his supervisor....

But the record ... shows that fooling his employer with fabricated paperwork wasn't that hard.

Jurors who are government employees are entitled to be paid their full salary when they are summoned to court and selected to serve on a jury. Clerks in the federal courthouse provide each juror with signed attendance sheets showing the days they have reported for duty in the courthouse. On some forms, the dates are printed out, on others they are handwritten.

For his troubles, Winstead pleaded guilty to a federal fraud indictment, will serve 8 to 14 months in a federal prison, and must repay $38,923.95 in ill-gotten wages. I'm guessing the Postal Service will not be holding his job for him while he's in prison.

What's troubling from Winstead's tale is just how easy it was for him to fabricate his paperwork. I've had the pleasure of serving jury duty in Cuyahoga County, and the documentation of your service consists of the original summons, and a (not so) fancy certificate you are given at the end of your service to document your time served. There is nothing, however, that documents what specific days or hours one was actually in attendance. It's a pretty scary prospect, especially for the 76% of employers (according to the Bureau of Labor Statistics) who provide paid jury duty leave for their full-time employees. Is it really a big problem that employees are stealing time from their employers when they are supposed to be serving jury duty? My sense is probably not. At the same time, however, there is often real workplace tension caused by an employee's right to serve jury duty without fear of termination or retaliation. Winstead took advantage of that tension, and it is incumbent on employers to ferret out those employees who are trying to game the system to ensure fairness for everyone else.

[Hat tip: ABA Journal]

Butt painter's lawsuit to go to trial

Does anyone remember Stephen Murmer? He was the Virginia high school art teacher suing his former employer over his termination after school officials learned he moonlighted by creating paintings using his bare buttocks as a brush. (See Butt I was doing it on my free time). School officials terminated Murmer after they saw a YouTube video in which he wore a swim thong and a Groucho Marx mask to demonstrate how he applies paint to his rear and presses it onto a canvas. The ACLE filed the lawsuit, claiming that Murmer's termination violates his First Amendment right to free expression. According to the lawsuit, available via the ACLU, Murmer was terminated for art he created on his free time and under a pen name, all of which he kept private from his students:

18. Plaintiff has thus created paintings by using his posterior and other body parts as a stamp with which to imprint paint onto a canvas.

19. With this technique, which includes sitting in paint and then pressing his buttocks onto a canvas, Plaintiff has created paintings which range from depicting stylized flowers to portraiture and patterns.

20. These seemingly simple paintings thus have a surprise in store for the viewer: only gradually, if at all, comes the realization that the image has been created with monotypes of the human body, a realization intended to reverberate in the viewer, setting in motion a process of self-discovery of one’s own personality traits, oscillation between watching a flower (or portrait or pattern) and one's preconceived bias of the human body. The artist's hope is that the viewer thus discovers his individual personality characteristics through visual response – as well as his personal views on the concept and the purpose of art.…

22. On or about October 25, 2003, Stan Murmur appeared in a short-lived cable TV show entitled "Unscrewed with Martin Sargent," where he explained how he promoted his artwork using the Internet, demonstrated how he creates his art, and completed a composition for TechTV.

23. As character invention Stan Murmur, Plaintiff was wearing a costume consisting of a towel wrapped around his head in a turban, a Groucho Marx mask, a white bathrobe, and a black swim thong.…

26. Stan Murmur’s performance eventually found its way onto YouTube, an Internet website on which users post videos. Plaintiff had no role in posting the video on YouTube.…

28. Plaintiff has scrupulously kept his private artwork separate from his role as a teacher.

29. At no time did Murmer discuss his art in his classroom. Nor did he ever inform students about his art or the YouTube.com video.

Murmer and the ACLU claim that what Murmer did on his own time was his own personal business and that the termination violates his constitutional right to free speech. Last week, the trial court denied the school district's motion to dismiss, permitting the case to proceed to trial on March 11.

This case continues to illustrate the dangers that employees face when posting controversial material on websites. What do you think: should employers be allowed to fire employees over personal activities outside of work?

[Hat tip: Lowering the Bar]

Supreme Court to hear argument on racial retaliation under Section 1981

On Wednesday, the Supreme Court will hear oral argument in CBOCS West Inc. v. Humphries, which asks whether an employee bringing a claim for retaliation stemming from a complaint of racial discrimination can file under 42 U.S.C. § 1981.

Enacted as part of the post-Civil War Civil Rights Act of 1866, Section 1981 requires that all people, regardless of race, have equal rights "to make and enforce contracts." The Civil Rights of 1991 affirmed the right of employees to sue under Section 1981 for employment discrimination. While Section 1981 only speaks of "race", courts have interpreted that term to also include ethnicity.

There are key differences between Title VII and Section 1981, which makes the outcome of this case important. First, Title VII requires an EEOC charge and a right to sue letter, while Section 1981 does not. Also, Title VII has a short limitations period, while one has 4 years to file under Section 1981. Finally, Title VII's damage caps do not carry over to Section 1981.

Humphries was an African-American manager at a Cracker Barrel restaurant, owned by CBOCS West. He alleged that he was fired because he complained about his supervisor's racially discriminatory behavior. The trial court dismissed his Title VII claims for procedural deficiencies, but the 7th Circuit permitted his claim to proceed under Section 1981, holding that it authorizes suits where employers retaliate against employees complaining of racial discrimination.

CBOCS West argues that if Congress intended Section 1981 to include retaliation claims, it would have specifically said so as part of the Civil Rights Act of 1991. Under a plain reading of the statute, conduct is not unlawful under Section 1981 unless it is racially motivated. Because Retaliation is motivated by the employee's protected activity, and not the employee's race, it is not covered under Section 1981. CBOCS also argues that permitting retaliation claims under Section 1981 would undermine the EEOC's conciliation and mediation process and Title VII's statute of limitations.

Humphries, on the other hand, argues that retaliation claims are universally permitted under other companion provisions to Section 1981, and that the legislative history to the Civil Right Act of 1991 indicates that Congress intended for Section 1981 to cover "harassment, discharge, demotion, promotion, transfer, retaliation, and hiring."

Given that this case will hinge on statutory interpretation, some combination of Roberts, Alito, Scalia, and Thomas will dissent in favor of a reversal. Ultimately, however, a majority of the Court will probably find that Section 1981 allows for retaliation claims. More on this case after the argument on Wednesday.

Some folks call it a jury verdict, I call it a lot of money

A federal jury in Forth Worth, Texas, has answered the age old question: How much is it worth if a female employee receives depraved and violent phone calls from a male co-worker for more than two years, in which he apes the voice of Karl from Sling Blade, threatening to kill her and cut her up. The answer: $15.6 million. On the up-side, the verdict was solely against the co-worker. The employer, American Airlines, was dismissed from the case.

The Star-Telegram has the details.

What else I'm reading this week #18

It's been a very busy week, and as usual, I'm here to bring you the best the employment law and HR blogosphere (or blawgosphere, if you prefer) offered this week.

To follow up on my post yesterday about office romances, Mark Toth at the Manpower Employment Blawg reports on a case finding that the perpetual ogling of the a female employee's chest could create a sexually hostile work environment — even in the absence of any physical contact, sexual propositions, racy remarks or other types of hallmark harassing behavior. Also take a look at George's Employment Blawg on the issue of workplace romances.

The Evil HR Lady shares her own thoughts on anti-fraternization policies, which not only prohibit workplace romances, but any type of non-work-related socializing with co-workers.

Teri Rasmussen, the Ohio Practical Business Law Counsel, posts her own thoughts on the business implications of Minor & Assoc. v. Martin, in which the Ohio Supreme Court held that retained memories are protected as trade secrets.

Both the Pennsylvania Employment Law Blog and the Connecticut Employment Law Blog (good luck Dan on your new job) have written this week on the issue of Employment Practices Liability Insurance. For more information on the pros and cons on EPLI coverage, take a look at Untangling Employment Practices Liability insurance.

The FMLA Blog has the most comprehensive review I've seen of the proposed new FMLA regulations.

BLR's HR Daily Advisor, which I recently added to my RSS reader, has two very thoughtful posts on retaliation: Retaliation: The Dumbest Thing Managers Do and Retaliation: 6 Steps to Prevent It.

Michael Fox's Jottings By An Employer's Lawyer comments on recent research on the benefit of arbitration agreements to employers.

Finally, John Phillips' Word on Employment Law draws some employment law conclusions from the dust up between Hillary Clinton and MSNBC.