Ohio Employer Law Blog

Wednesday, June 13, 2012

Vague complaint dooms employee’s retaliation lawsuit

Susanne Pintagro worked for Sagamore Hills Township as an administrative assistant. When a newly hired intern made her feel “uncomfortable and concerned for [her] safety” she took her concerns to the township’s trustees. The trustees determined that because Ms. Pintagro and the intern had to work the same schedule, and gave her the choice of resignation or termination. After Ms. Pintagro resigned, she sued, claiming, among other things, that the township retaliated against her for reporting the intern’s workplace harassment.

In Pintagro v. Sagamore Hills Twp. (Ohio Ct. App. 5/23/12), the court of appeals affirmed the dismissal of her retaliation claim. It concluded that Ms. Pintagro had not engaged in protected activity sufficient to raise the protections of Ohio’s anti-retaliation statute:

It was Ms. Pintagro’s burden … to establish that she engaged in a protected activity, that is, to demonstrate that she “opposed an unlawful discriminatory practice” such as harassment because of her “race, color, religion, sex, military status, national origin, disability, age, or ancestry.” …

Ms. Pintagro also has not presented any authority for her argument that a court should infer discriminatory intent when an employer fails to investigate a claim of workplace harassment…. Even assuming that [the] actions constituted harassment, it is as likely that his conduct was motivated by a personality conflict or other non-discriminatory reasons as it is that it was motivated by prejudice.

In other words, because Ms. Pintagro could not prove that she complained about unlawful harassment, her retaliation claim failed.

Repeat after me:

We will not do what Sagamore Hills Township did in this case.

When an employee comes to you with a complaint about a co-worker, do not ignore it, do not fail to investigate it, and do not fire the employee (or force her to resign). Yes, you might successfully defend a subsequent retaliation lawsuit based on the vagueness of the complaint. But, you might also step in a huge pile. This court refused to interpret a woman’s complaint than a man made her “uncomfortable and concerned for [her] safety” as a complaint about sexual harassment. Another court, however, could just as easily conclude that a jury should have the final say in interpreting that complaint.

Tuesday, June 12, 2012

Constructive discharges cannot exist in a vacuum of illegality

A constructive discharge occurs when an employer’s actions make an employee’s working conditions so intolerable that a reasonable person under the circumstances would feel compelled to resign. Usually, a constructive discharge arises in the context of a discrimination lawsuit, satisfying the “adverse action” necessary to support the claim.

What happens, though, when there is no connection between the resignation and the law alleged to have been violated. Can an employee claim that a constructive discharge occurred in this vacuum? Kemper v. Springfield Twp. (Ohio Ct. App. 6/6/12), says no.

Patrick Kemper worked as a patrolman for the Springfield Township police department. The department had a formal policy requiring employees to submit a written request, and receive written permission, before engaging in outside work. Kemper planned to start a side security business. He discussed the idea with his supervisor, Chief David Heimpold, who told him that there would have to be precautions to prevent any conflict with police business. A few months later, Kemper submitted a letter to the department misstating that Heimpold had given permission to operate the business. When the township administrator, Michael Hinnenkamp, confronted Kemper with his lie, and with the prospect of an internal investigation, likely termination, and the loss of his pension and benefits, he resigned.

Kemper sued, claiming a constructive discharge related to an FMLA leave he was taking at the time. The jury awarded Kemper $491,000. The court of appeals agreed that the township had constructively discharged Kemper:

Hinnenkamp let it be known that any disciplinary proceeding would in all likelihood end in termination and that Kemper would lose his pension and other benefits…. Kemper had reasonably believed termination to be a foregone conclusion….

The court concluded, however, that the constructive discharge was lawful:

But our inquiry does not end with the conclusion that Kemper produced sufficient evidence with respect to the alleged constructive discharge. A plaintiff must also establish a connection between the exercise of FMLA rights and the adverse employment action…. All of the evidence demonstrated that Kemper’s acknowledged dishonesty was the basis for the challenged discharge. There was no threat of discipline prior to the letter submitted to Heimpold and no indication in the record that Kemper's absences—or the conditions that led to those absences—bore any relationship to the adverse employment action.

Employees resign all the time, sometimes for reasons related to poor treatment by their employers. As this case makes clear, unless that poor treatment is connected to protections provided by the law, the resignation cannot form the basis for a lawsuit.

Monday, June 11, 2012

Know when to fish, and when to cut bait

I spent last week on Hilton Head Island, South Carolina. If you’ve never been there, do yourself a favor a take a trip. It's about as perfect of a vacation spot you can find in the continental 48 (see sunset below).

On the last day of our vacation, my family took a dolphin cruise through the Calibogue Sound. It was a hands-on trip for the kids. They got to cast a fishing net, pull up a crab pot, and fish for shark. The ship’s captain told us that they usually catch a lot of shark. For example, the day earlier they had reeled in 19, Norah-fishing including two baby hammerheads. So, it was with much excitement that my daughter cast her line into the sound. After about 5 minutes (an eternity for a 6-year-old) she started asking when she would catch her shark. My wife explained that fishing is more about patience and relaxation than actually Shark catching fish. As you would imagine, that did not go over so well with my newly minted 1st grader, although she did stick with it and enjoyed the experience. We, however, were not the only ones having issues. The captain moved the boat to what he hoped would be more fertile water. It wasn’t. She moved again, hoping the third time would be the charm. It wasn’t, and she had to call it a day. Indeed, on our cruise, only one lone shark was reeled in (by the boy next to us, much to my daughter’s chagrin).

As I am wont to do when I am not blogging, I began to think about what this tale could teach you, my readers. Much like fishing, in dealing with marginally performing workers, employers must know when to fish and when to call it a day. And, much like our ship’s captain, you usually don’t quit at the 1st sign of failure.

Employees are investments—of time, training, salary, and benefits. Unless an employee commits an egregious violation of the rules that cannot be tolerated, most deserve multiple chances to prove themselves worthy. Performance problems are not terminable offenses; they are teaching opportunities. Use them to hone your employees, and only terminate when an employee proves himself or herself un-teachable. You will be surprised how many employees you can rehabilitate (and investments you can save) merely by resisting the urge to cut bait too early on your marginal performers.

I’ll miss experiencing the sunsets at Harbour Town, but I’m happy to be home, and, believe it or not, happy to be back at work.

Sunset