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Employees behaving badly, employers making matters worse

August 24th, 2013  |  Lisa Milam

Reading employment cases for a living, day in and day out, I’m often struck by the compelling human interest stories they tell. Some of these stories, regrettably, reflect humanity at its most ignoble. They tell tales of employees engaged in reprehensible conduct. Worse still, though, are the accounts of employers acting as accomplices to the crime. Consider the cases below:

“A good cook is hard to find.” While working the morning shift one day, a restaurant waitress was slapped on the buttocks by the cook as she walked past him. She complained to the restaurant owner, who simply gave the cook a verbal warning and left it at that. A month later, the waitress was assaulted once again: the cook approached her, grabbed her breasts and forcefully twisted them, and pushed her up against a wall, causing her to cry out in pain. The waitress immediately went to her supervisor, who relayed the incident to the owner. The owner brought the cook into his office and, with the waitress present, the cook admitted to grabbing and twisting her breasts. The next morning, the waitress filed a formal criminal complaint against the cook, who was arrested at the restaurant and charged with battery. He would eventually plead guilty to the battery charge—but not before an “agent” of the restaurant posted bond to get him out of jail and harangued the waitress to drop the charges.

The restaurant never disciplined her attacker. “Good cooks were hard to find,” the owner explained, stating he had no intentions of discharging his employee. Instead, in the weeks following the arrest, the waitress (who was traumatized and had not yet returned to work) received several calls from her supervisor. Calling on the restaurant owner’s behalf, the supervisor urged the waitress to drop the charges, admonishing her to “think about” the cook and his three children. She also threatened the waitress with discharge if she refused to come back to work. Perhaps the waitress might have done so had the supervisor not refused to adjust her work schedule so that she wouldn’t have to work the same shift as her assailant. Instead, unable to return due to her fear and anxiety at the prospect of working with the cook, the employee was discharged.

A federal district court refused to absolve the restaurant, its owner, or the supervisor of liability for the sexual harassment and battery endured by the waitress at the hands of the cook. The restaurant had essentially authorized the harassment and attack by refusing to discipline him or assign him to a different shift, both after the initial incident and again after the subsequent battery. In fact, in repeatedly asking the employee to drop the criminal charges against her assailant and threatening her with retaliation if she did not comply, the restaurant went considerably further: it “actively attempted to shield [the cook] from the consequences of his actions rather than merely refusing to punish him,” the court observed. The conduct here went far beyond “everyday job stresses,” despite the restaurant’s contention to the contrary. As the court saw it, the employer’s active promotion of the cook’s sexual assault on the waitress and its attempt to assist him in avoiding the consequences of his action were extreme and outrageous.

This guy’s a train wreck. After 10 years at CSX, an employee had worked her way up from a yardmaster job to a management-level trainmaster position. During a phone call with a trainmaster at another train yard (who was using a hands-free speaker phone), the employee overheard a man in the background saying, “So how does [the employee] taste and feel because I heard she’s never had a d*** in her.” Two weeks later, in a meeting with the division supervisor about the inappropriate comment, the other trainmaster reported additional lewd remarks that the offending coworker (also a trainmaster) had made about the employee and her sexual orientation, as well as derogatory comments about another female trainmaster. As a result, the coworker was placed on administrative leave pending an investigation. Several of his colleagues overheard him blaming the employee and threatening to retaliate against her. Sure enough, after he was demoted from his trainmaster position, he exercised his seniority right to transfer to an engineer position — working directly under the employee.

Two CSX officials contacted the employee to inform her that the trainmaster had been demoted, that he had not reacted well to it, and that he was about to be transferred to her territory. The employee noted she was apprehensive about supervising him and frightened by the prospect of doing so. Given his comments alluding to violence and retaliation, and out of an apparent concern for her safety, the officials told her to pack her belongings, leave her office, and not return to work. Then they placed her on paid administrative leave until they could “figure out where else to send” her.

The next morning, an unidentified man pounded on the front door of the employee’s home for an hour, yelling “Come out b****. Don’t be afraid of me. Come out. You cost me my job [sic] and I’m going to get you, come on out.” Immediately after the man left, the employee packed her bags, left town, and reported the incident to CSX officials. The company paid for her to stay in a hotel out of town for eight days. However, it did not investigate the incident or question the suspected trainmaster about his involvement. It did, however, offer the employee a transfer out of state so that she wouldn’t have to supervise him. When she refused, she was instructed to meet with an employment counselor. The counselor in turn referred her to a psychiatrist, where she was diagnosed with adjustment disorder, anxiety, occupational harassment, clinical depression, and increased blood pressure related to her employment. She remained on paid medical leave for six months.

While out on leave, the employee received anonymous, harassing phone calls almost daily from a man who kept calling her names and saying, “I’m not finished with you” and “Hey, b****, I haven’t forgotten what you’ve done. Watch your back. I’m going to get you.” Although she changed her phone number three times, the calls persisted. She reported them to her supervisor and the railroad police, but the caller could not be identified because the calls were made from a private, blocked number.

After she was cleared to return to work, the employee accepted a transfer back to her former position as yardmaster at another location in the state — at a $35,000 annual reduction in salary — so that she would not have to supervise her tormentor. But soon after beginning work at the new location, the employee received yet another threatening phone call. “Hey, b****,” the male caller asked, “Did you hear about [the other trainmaster, who had joined her in reporting the incident]?” Later, she learned that he had been attacked while working on a train on a rail line; he was hit on the head from behind and hospitalized for several days with a severe concussion. The employee reported this phone call to her supervisor and to the railroad police as well.

Shortly thereafter, the employee was having car trouble. Driving an unreliable vehicle made her fear for her safety in light of the threats and attack on her colleague, so she asked for permission to use the CSX taxi on occasion while her car was being repaired. It was hardly an unreasonable plea, since CSX frequently used a taxi service to transport workers, provide transportation for employees with car trouble, or perform work-related errands. Although her request was approved by three supervisors, the company began an investigation into her use of the service, unbeknownst to her. CSX also blamed her for an incident in which a train ended up on the wrong track, even though the train conductor acknowledged his error caused the incident. The day after the track incident, the employee was ordered to another meeting to discuss her illness-related absences. When she explained that she had a doctor’s excuse to miss work, CSX officials informed her that the company did not accept doctor-excused absences. The following day, the employee was questioned extensively again — this time about her taxi usage. She was suspended without pay for improper taxi use and ultimately terminated. As of the date of her discharge, no other CSX employee had been disciplined or dismissed for improperly using the company taxi service.

A jury found the employee was subjected to a hostile work environment and CSX did not adequately investigate or respond to the alleged misconduct. She had told her superiors of her “discomfort, trepidation, and outright fear” at the prospect of having to serve as her harasser’s supervisor after his demotion and transfer to her territory. “The cumulative effect” of the employee’s misconduct, “which CSX compounded by its inaction,” was enough from which a jury could find that the harassment she endured was severe and pervasive. The jury also found CSX had negligently retained the assailant and that the company’s negligence proximately caused the damages alleged. The employee had been forced to resign her managerial position, take a demotion and sharp pay cut, and relocate “simply to avoid further victimization as the supervisor of the employee who had sexually harassed her.”

As a result, the employee was awarded $1.56 million in compensatory damages and an additional $500,000 in punitive damages. Denying the employer’s motion for post-trial relief, the court cited numerous aggravating factors, such as CSX’s reprehensible conduct in promoting and perpetuating a hostile work environment by continuing to employ the assailant—despite its stated zero tolerance harassment policy—and in willingly allowing him to transfer to a position over which the employee would have been required to supervise him. The court also noted the psychological distress she endured and the measures that she had to undertake in order to ameliorate her discriminatory working conditions. In fact, the trainmaster’s comment and its aftermath had created a workplace so hostile that the company told the employee to leave town out of fear for her safety. Ultimately, the employee had to “extricate herself [from that environment] by moving halfway across the State … to avoid her harasser.”

The owner’s son is no prince. An employee was assigned to share an office with the son of the company’s founder. When he began placing letters on her desk expressing his affections, the employee told her supervisor about the unwelcome attention, but she suggested that it would be unwise to show the letters to the owner because it would put her job in jeopardy. Her coworker’s amorous advances continued, with him fantasizing openly about divorcing his wife and starting a relationship with the employee. Although the employee countered that she was happily married—in fact, she was currently undergoing fertility treatments to start a family—her coworker was undeterred. He told her to leave her new husband, offered her a “better life,” suggested that she should have his child instead of her husband’s, demanded that she meet him outside of work to discuss his romantic intentions, and suggested that, once his father retired, it was uncertain “what would happen to her.”

One day, while he stood in the Wal-Mart checkout line and discovered that the employee’s husband was standing nearby, the coworker called the employee, apparently trying to taunt her husband with the prospect of an adulterous liaison between the two. After the employee reported the latest incident, the coworker was ordered to vacate their shared office and apologize. A few weeks later, the employee received a text message from the coworker’s wife with the word “HOMEWRECKER!” The coworker called to apologize but also suggested that “he was not sure her job was safe since she was no longer his friend.” He also pressured her to let him share the office again and told her that if she withdrew her complaint, things would return to normal.

The harassment ceased for a time. Then the coworker called the employee to offer the use of his father’s farm on their property for her horses. She went to the farm to talk to the manager, a man whom she knew, but when she got there, the coworker bound her, dragged her to his bedroom and raped her. He told her that he knew of another woman that could do her job and that “times are tough, so it depends on who needs the job worse.” Finally, he offered to show her the pasture. Instead, the employee went to a rape center, and never returned to work.

The employee’s supervisor, unaware of the attack, claimed that the employee voluntarily quit, as grounds for denying her unemployment claim. What followed was a smear campaign against the employee in an effort to silence her, she alleged, and to defame her in the community and prevent her from getting suitable work. The employer and her attacker misled the community about the rape and “deliberately and maliciously sought to sway public opinion” against her in order to undermine her legal claims against them, she claimed. As a result, her marriage fell apart and she required treatment for post-traumatic stress disorder.

In addition to asserting claims against her attacker, the employee sued the employer. She asserted that it was irresponsible and reckless in failing to terminate the owner’s son and that it fostered a sexually charged atmosphere. She also alleged outrageous conduct based on the smear campaign launched after her sexual assault. However, the employee could not establish that her refusal to submit to her coworker’s unwelcome sexual demands resulted in an adverse employment action. Moreover, the rape by her coworker was not an official action of the company and therefore not an adverse employment action. As such, a federal court in Tennessee dismissed the employee’s quid pro quo sexual harassment claim. But her outrageous conduct claim under state law survived a motion to dismiss, and her retaliation claim proceeded in part.

Could this happen to you? It’s easy to spot the missteps by these employers in hindsight, from our vantage point outside the heat of the conflict. Consider, though, whether any of these scenarios could unfold in your organization. Is there an employee you’ve decided is so valuable that you look the other way when he engages in egregious conduct? Are your managers too timid to make the tough calls when problem employees require discipline? Are your HR folks prone to “compassion fatigue,” perhaps secretly hoping a traumatized employee will simply go away? Is there a well-connected scoundrel in your midst who’s been deemed untouchable?

Your leaders and front-line managers are only human, after all, and responding to these crises can be tough. But at a certain point, a foiled response to misconduct amounts to aiding and abetting. Vigilance in the face of such behavior is critical. Or yours may be the next human interest story I read.