Category Archives: Litigation Issues

Don’t Make a Habit of it, but Sometimes, Ignorance IS Bliss

As a general rule, of course, Human Resources Departments and company management want to be – and should be – well-informed about issues in the workplace, including employees unhappy enough to have raised claims of discrimination or harassment. If key people at the company are unaware of such complaints, the employer might leave itself open to charges of sloppiness, indifference, or even tolerance of harassing or discriminatory conduct. But is it ever better not to know about an employee’s complaint?

Two recent cases illustrate how ignorance can sometimes be bliss in employment litigation. When the employer is accused of retaliation, i.e., firing an employee because of his or her complaint, the employer may have a defense if the decision-maker did not know anything about the complaint, because the employer cannot retaliate based on something it does not know.

Summary judgment based on lack of knowledge

In both McKnight v. Aimbridge Employee Service Corp., Case No. 16-3776 (3rd Cir. October 26, 2017) and Esker v. City of Denton, Texas, Case No. 02-17-200003-CV (Tex. App. October 26, 2017), an employee complained of discrimination or harassment and was shortly fired thereafter. The employee then sued for both the original discrimination or harassment and retaliatory discharge, but in each case the retaliation claim was dismissed because the person making the termination decision had no knowledge of the discrimination or harassment complaint.

Jamie McKnight was an African American food service worker at a hotel managed by Aimbridge. He felt that he was denied training opportunities and a desirable transfer because of his race, so he complained to the hotel’s general manager about discrimination and also filed a charge with the EEOC. He was given a negative evaluation, put on a development plan, and eventually terminated. But the Aimbridge supervisors who took these actions against McKnight were different individuals from the general manager to whom he had complained. At summary judgment, McKnight was unable to provide any evidence that the decision makers knew about his earlier discrimination complaints. In the absence of substantial, credible evidence to prove knowledge, the court held that McKnight could not possibly prove that the reason for his termination was his discrimination complaint. Summary judgment was granted.

Wander Esker was a duty officer in the Denton, Texas police department. She complained to an HR employee that a co-worker had sent her inappropriate text messages and had tried to kiss her, but Esker refused to give details or disclose the name of the offending co-worker. The HR employee informed her that he needed more information in order to help. At about the same time, Esker’s supervisor noticed that she had apparently stolen a toy donated to the Police Department’s annual toy drive. He began monitoring her more closely and learned that she was claiming to have worked many hours when she was not at her desk. Esker claimed that the hours reporting discrepancies were an honest mistake, but the Police Department investigation concluded otherwise, and she was terminated. She claimed both sex discrimination and retaliation. Once again, the employee’s retaliation claim failed because the individuals to whom she had complained (two people in the HR department) were not the individuals who decided to terminate her. Esker was terminated by the Chief of Police. Even when she met with the Chief to discuss her termination, she did not bring up her harassment complaints in that meeting. Esker admitted in her testimony that she had no evidence that the Chief was aware of her harassment complaints. Because she was unable to provide evidence that the actual decision maker knew of her earlier complaints, and her retaliation claim was dismissed on summary judgment.

Points to remember

The cases illustrate the following key points:

  • Identify the decision maker: both employers were able to prevail because they could clearly identify which individual or individuals had made the termination decision. In any case in which there is a claim of discrimination or retaliation, the focus will be on the decision maker, and the employer must be clear as to who that person is.
  • From the employee’s perspective, follow through on complaints: Ms. Esker raised a complaint about sexual harassment, but refused to provide details or identify the individual involved. HR specifically told her that it could not do an investigation without more information, but she still declined to provide any. While it is not entirely clear from the case what would have happened had she provided more information, it is likely that a more thorough investigation into her complaint would have had a higher profile within the company, perhaps negating the defense that the Chief was unaware of it.
  • Summary judgment is time to “put up or shut up”: whatever the specific issues are on a summary judgment motion, courts expect both parties to provide actual evidence in support of their position, not mere speculation or argument. The courts in both Esker and McKnight recognized the speculative possibility that the decision maker knew of the complaint, but they based their decision on the lack of actual evidence to that effect.

Refusal to Transfer an Employee as an Adverse Employment Action; or, How Life Imitates 1950s Movies

In the classic 1955 movie, Mister Roberts, Henry Fonda plays Doug Roberts, a frustrated Naval officer aboard a supply ship in a backwater area of the Pacific during World War II. Roberts desperately seeks a transfer to a combat ship more directly involved in the war, but he is continually – and maliciously – turned down by Captain Morton, portrayed by Jimmy Cagney:

Doug Roberts: “I’m asking for it! If I can’t get transferred, I’ll get court martialed off! I’m fed up!”

Capt. Morton: “No. You’re a smart boy, Roberts. But I know how to take care of smart boys. I hate your guts, you smart college guys! . . . now YOU can take it for a change! The worst thing I can do to you… is to keep you right here, Mister, and here is where you’re going to stay. Now, GET OUT!”

Although Roberts eventually gets his transfer to a combat ship, many employees share his frustration when their employer denies a transfer to another location or position. If the requested, but denied, transfer involves no additional money and is not a promotion, has the employee suffered the type of adverse employment action that will support a lawsuit? 

Many types of employment lawsuits require an adverse action by the employer. The classic example is firing the employee for an illegal reason, such as racial discrimination. Other examples include refusing to hire a qualified applicant, denying a promotion, or refusing to grant a raise. However, when there is no tangible benefit to the requested action, at least some precedent holds that the employee has no basis to sue, even if the denial of the requested action is based on race or another protected status. A recent decision from the Court of Appeals for the D.C. Circuit demonstrates that even an allegedly discriminatory action can fail to provide the basis for a lawsuit, if it involves only “subjective” injury to the employee.

In Samuel Ortiz-Diaz v. Dep’t of Housing and Urban Development, Mr. Ortiz-Diaz had worked as an investigator in Washington D.C. under a supervisor named McCarty. Ortiz-Diaz came to believe that McCarty had issues working with Hispanic males and sought a transfer to Albany, New York or Hartford, Connecticut. His request was denied. The transfer would not have been a promotion; indeed, some evidence suggested that it might require Ortiz-Diaz to take a pay cut or reduction in job grade. Ortiz-Diaz sued, alleging unlawful race and national origin discrimination. The district court granted the government employer summary judgment, on the grounds that a purely lateral transfer was not an “adverse employment action.”

On appeal, a divided D.C. Circuit court affirmed the dismissal. The majority ruled that the purely “subjective” injury of working for a supervisor who dislikes you is not a basis for a federal discrimination claim. The Court also rejected Ortiz-Diaz’s argument that a transfer would enhance his future opportunities for promotion, on the ground that that was mere speculation.

The case provoked two concurring opinions and a vigorous dissent. One concurrence specifically noted that the requirement of a tangible injury would not apply to harassment cases. A second stated that the result was based only on adherence to prior precedent, and expressed his “skepticism” about the wisdom of the ruling.

A third judge dissented, arguing that the evidence was disputed as to whether the transfer would actually enhance Ortiz-Diaz’s career prospects, so summary judgment was improper. The dissent also noted that other federal courts of appeal have looked more favorably on claims based on lateral transfers.

The case presents several important points for the employer to bear in mind:

  • At least in some circumstances, an employee’s claim of discrimination is not sufficient for a lawsuit, where the employer has not taken any actual (and harmful) action against the employee based on the alleged discrimination;
  • However, any actions in the workplace based on discriminatory motives present problems and risks for employers. Ortiz-Diaz’s claims might have fared better in a different federal court, and harassment claims do not require an adverse employment action;
  • The case also illustrates, for both employers and employees, the importance of presenting cogent, non-speculative evidence at the summary judgment stage. If Ortiz-Diaz had been able to present better evidence that the requested transfer would help his career prospects, he might well have prevailed.

So unlike Mister Roberts in the movie, Ortiz-Diaz did not get his transfer and remained stuck working for McCarty in D.C. On the other hand, Mister Roberts’ transfer did not produce the desired tangible benefits either; he is killed in a kamikaze attack aboard his new ship. Be careful what you wish for.

Quirky Question #287: “Cat’s Paw” Claims – How could an employer violate antidiscrimination laws, even though the decision-making manager has no discriminatory bias at all?

Question: We just went through a five-person layoff, and one of the individuals laid off (an African American) has hired a lawyer and is threatening to sue for racial discrimination. I have enormous confidence in the fairness of the individual manager making the layoff selections, and those selections were based on years of performance ratings.  However, the lawyer hired by our ex-employee says that doesn’t matter, because the ex-employee’s direct supervisor was racially biased.  He says that the bias of the direct supervisor taints the entire process and that the manager was merely a “cat’s paw.”  Let’s assume for a moment that the direct supervisor is a little rough around the edges.  Do we have a problem here, even though the manager is fair and unbiased?  And what the heck is a “cat’s paw” anyway? Answer→

Quirky Question #285: Potholes on the Ethical “High Road”

Question:  We learned that some of our employees may have been engaging in unethical, and perhaps even illegal, behavior.  We don’t tolerate this, so we hired a law firm to conduct an investigation, and based on the results of that investigation, we terminated the employees.  The terminated employees were high-profile employees, and we told some people why they were fired.  Also, when we fired the employees, we briefly referenced the investigation, but didn’t provide them with any substantive information about it.  Do you see any problems with that?

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Quirky Question #284: If a tree falls in the forest and no one hears it, can you still unlawfully retaliate against it?

Question: One of our male supervisors wants to fire a female employee who complained that he was sexually harassing her. The harassment allegations appear to have some substance: he asked her for pictures of herself in a bikini; told her to “stay off [her] knees,” which she viewed as sexual innuendo; and told her that her regulation length shorts were too short. Also, the grounds for termination (driving a vehicle with the door open, creating a safety hazard) have been overlooked in other situations. We are a little worried that she will claim we are retaliating against her for the sexual harassment complaint.  But the supervisor says he never heard about the sexual harassment complaint.  So, if he didn’t know about the complaint, he could not possibly retaliate against her on the basis of that complaint, right?  You could get this case thrown out before it ever went to trial, right?

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Quirky Question #283: They Stole Our Stuff, Can We Sue?

Question: My company recently terminated an employee, and we are very worried she accessed her email inappropriately in the days before she was fired. The timing of it all is … well, quirky.

Here’s what happened: The employee’s manager met with her on a Friday and informed her that her performance was not acceptable, even after several earlier warnings to improve.  The manager told the employee to go home early and return to work first thing Monday to meet with the manager and the manager’s supervisor.  The supervisor, manager, and employee met as planned on Monday and the employee was terminated.  Later that day, however, our IT folks reviewed her account and determined she had accessed her email dozens of times on Saturday and Sunday – there are no “sent messages” in her account, so we figure that she was printing off e-mail and maybe contacts because she saw the writing on the wall about the Monday meeting.

Our policies allow employees to access email from home – but we can’t think of any reason why she would have done so over this weekend and IT said she hadn’t logged in from home for at least six months. Needless to say, the timing is very suspicious, and we’re thinking about suing to find out what she did when she logged in.  Can we?

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Quirky Question #281: Deploying the DTSA

Question: We believe our former employee recently stole some of our trade secrets and went to a competitor.  Can we rely on the Defend Trade Secrets Act to bring suit in federal court?

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