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Employees behaving badly, employers making matters worse

August 24th, 2013  |  Lisa Milam-Perez  |  1 Comment

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.

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State public policy wrongful discharge – how much does it matter whether other remedies are available?

August 20th, 2013  |  Joy Waltemath  |  Add a Comment

State public policy wrongful discharge is all over the map – literally. This summer, there have been a handful of interesting cases addressing, in particular, the impact of other available remedies on the viability of a wrongful discharge claim. Not surprisingly, sometimes it matters, and sometimes not so much. Check out these examples:

Existence of other remedies? For example, in Iowa, an internal complaint by an assisted living facility’s marketing director that her employer was forging required staff training documents advanced a clearly defined and well-recognized public policy involving the welfare of dementia patients expressed in both the Iowa Code and administrative rules (Dorshkind v Oak Park Place of Dubuque II, LLC, August 2, 2013). Consequently, when her employer fired her for internally reporting her suspicions that supervisors had falsified state-mandated staff training documents for the assisted living facility’s dementia program, the Iowa Supreme Court found her discharge unlawfully undermined that policy, both by punishing her and by chilling the reporting by other employees for similar workplace illegalities. It didn’t matter, said the court, that there was an applicable statutory method for filing an external complaint, reasoning that whether the employee makes the complaint internally or externally does not change the public policy considerations.

But in Washington state, the existence of another avenue for making a complaint did matter. There, a state appellate court found that a terminated nurse practitioner failed to show her wrongful discharge suit was the only adequate means of promoting a public policy against billing fraud and inadequate standards of care, given the existence of a whistleblower statute that covered her concerns (Worley v Providence Physician Services Company,  July 23, 2013).  She was required to demonstrate that no other means of promoting the public policy existed than by her wrongful discharge claim, but state law allowed for filing whistleblower complaints with the Department of Health.

Perhaps it was also significant that the nurse had uncorrected performance issues and that she only complained about improper Medicare billing and inadequate care the day after she received a final warning for excessive tardiness, inferior work, inappropriate conduct, and failure to cooperate. Plus, said the court, she was actually terminated for removing protected patient health information from the premises, information she claimed she was faxing to the compliance specialist regarding her earlier complaints. She never, however, provided the compliance specialist with the information; she did provide it to her boyfriend, an attorney, though. This was a violation of the employer’s code of conduct.

No other civil remedies available. In Ohio, an employee who was fired because she voted for President Obama in the 2012 election satisfied the elements of a public policy wrongful discharge claim under Ohio law, a federal district court ruled (Kunkle v Q-Mark, Inc, June 28, 2013). Before the November election, her supervisor threatened employees with discharge if President Obama was reelected, saying Obama supporters would be the first to go if he won, The day after the election, the employee said she had voted a straight Democratic ticket; on November 9, she was fired. To establish a public policy wrongful discharge, she relied primarily on an Ohio statute barring employers from discharging a voter for taking time to vote, or intimidating a voter to induce her to vote (or not vote) for or against any candidate, two additional provisions of the state voting law, plus federal election law barring voter interference or intimidation. It wasn’t difficult for the court to find a clear public policy against persons threatening or intimidating others in an effort to compel their vote for a particular political candidate.

Although the employer argued that all these statutes provided penalty enough – criminal fines and imprisonment – to protect the public policy at stake so that there was no need for a wrongful discharge tort, the court disagreed, pointing out there was no civil penalty. Not only that, the court let the employee proceed against her supervisor individually, rejecting the argument that public policy wrongful discharge claims can’t be asserted against a supervisor in his or her individual capacity.

Fact that Title VII remedies available not controlling. Pointing out that the legal remedies available under two Oregon statutes on which an employee relied for her pregnancy bias and retaliation claims were not available at the time she was fired, the Oregon Court of Appeals refused to dismiss her common law wrongful discharge claim based on the same allegations (Kemp v Masterbrand Cabinets, Inc, July 17, 2013). Nor did the fact that she could have asserted a Title VII claim change the analysis, reasoned the court, because damages available under Title VII are capped.

Here, the employee filed suit for pregnancy discrimination and retaliation under Oregon statutes and also asserted a common law wrongful discharge claim. She prevailed at trial but her employer appealed, arguing the wrongful discharge claim should have been dismissed because the employee had adequate state and federal statutory remedies, and wrongful discharge is designed to fill a gap where a violation of public policy otherwise would not be adequately remedied. Disagreeing, the appeals court noted that the legal remedies available under the Oregon statutes for pregnancy bias were not available at the time of the alleged incidents. However, the fact that she also could have asserted a Title VII claim did not preclude her wrongful discharge claim in any event, because compensatory and punitive damages are capped under Title VII, and Congress made clear that Title VII remedies do not displace a common law remedy.

Explicit public policy required. Regardless of whether other remedies are available, though, the public policy under which an employee sues for wrongful discharge must be defined clearly. Consequently, an employee in Missouri who lost his job at a Honda dealership because his girlfriend bought a Honda from a competitor could not make out a wrongful discharge claim because the employer did not violate a clear mandate of public policy, a Missouri appeals court ruled (Hedrick v Jay Wolfe Imports I, LLC, July 30, 2013). The employee’s attempt via several disparate statutes to establish a state public policy that encouraged its citizens to conduct business freely was not the kind of explicit authority the public policy exception to the at-will doctrine required.

Unwritten dealership policy was that employees and members of their households were prohibited from buying a new Honda from another dealer without giving the dealership employer a chance to match the competitor’s price. But, when the employee approached the sales manager about a Honda for his live-in girlfriend, the only deal he was offered was $600 over the car’s regular price. She got a deal from a competitor for $1000 less than the dealership quote, and when the dealership found out, it fired him. He sued for wrongful discharge, cobbling together a variety of statutes that he claimed established a clear public policy of allowing citizens to conduct business freely. The appeals court wasn’t buying it, pointing out that at best, the employee was trying to do implicitly – based on the provisions of those statutes – what the law required, which was explicit authority mandating the public policy. Without that, his claim failed as a matter of law.

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Employers are left to pick up the pieces when office romances fizzle

August 16th, 2013  |  Lorene Park  |  Add a Comment

By Lorene D. Park, J.D.

Let’s face it; romances between coworkers are more common than most people (particularly married people) want to admit. Many employers have non-fraternization policies due to fears that such relationships will lead to harassment suits but, frankly, that’s like locking your patio door. If someone wants to break in, they’ll simply break the glass. So a policy, however well drafted, is unlikely to stop two consenting adults who are determined to take things to the next level. And much like the hapless homeowner on the day after the burglary, the employer will be left to pick up the pieces of a fizzled romance. That’s when the policy can help — particularly if it is enforced fairly.

For example, in Rau v United Parcel Service, Inc, a federal district court granted summary judgment for an employer on all claims by a female UPS supervisor that depended on allegations that she was treated worse than her ex-boyfriend, who was also a UPS supervisor. The policy violations came to light when she asked to transfer after their romance fizzled, and the employer gave them the same choices between discipline and separation agreements (D. Idaho, July 31, 2013). Her claims of emotional distress also failed.

Of course, disparate treatment isn’t the only issue for employers. In another case, an employee who ended a two-year affair with her supervisor and quit after she found out he was already married, sued the employer for sexual harassment (Kane v Honeywell Hommed, LLC, D. Colo. July 30, 2013). Dispensing with her claims on summary judgment, the court noted that the facts surrounding the relationship, including her efforts to maintain it, indicated the sexual conduct was not unwelcome. Her continued excellent performance further undercut her HWE claim. Moreover, her claim that the failure to rehire her (when she wanted to come back) was in retaliation for her EEOC charge also failed, because she did not show the employer knew of the charge.

You would think that two adults who so easily (and enthusiastically) navigate themselves into such relationships and hide the fact from their employer could clean up their own mess if the relationship sours but, all too often, it is the employer that has to pick up the pieces. When that happens, here is some advice:

  • You can have policies limiting supervisor-subordinate relationships and requiring disclosure of relationships but recognize, realistically, that willing participants will actively hide policy violations for fear of losing their jobs
  • When drafting any fraternization policies, avoid running afoul of other laws such as the NLRA (coworkers may discuss the terms and conditions of employment on and off duty) or privacy laws
  • Along the lines of privacy, make sure any investigation into policy violations only discloses information on a relationship to HR staff or managers who need to know
  • Ensure that your sexual harassment policies cover situations where once consensual relationships turn sour (give more than one avenue for a subordinate to complain)
  • Treat the participants in fizzled relationships as equally as possible
  • Be able to justify all responses to such relationships with a legitimate business reason

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Be careful what you write

August 13th, 2013  |  Kathy Kapusta  |  Add a Comment

To avoid potential problems in giving references, many employers have adopted a policy of releasing only very limited objective and factual information, such as dates of employment and salary history. One obvious danger of providing a recommendation is the possibility of being sued if the employee does not perform satisfactorily or does something to damage the company that relied on the recommendation.

Supervisors say the darnedest things. Two recent court decisions should serve as reminders to employers of the hazard of providing recommendation letters, even well intentioned ones to good employees. In a decision from the Sixth Circuit, a 52-year old employee was laid off following a downturn in his employer’s business. He was chosen after his supervisor, who had been asked to rank all the employees against each other, placed him at the bottom of the list. Unfortunately for the employer, when the supervisor informed the employee of his termination, he told him that age played a factor in the decision and admitted that he retained a younger worker because he would be with the company longer than the employee.

At the employee’s request, the supervisor wrote a letter of recommendation in which he described the employee as “a key member of the design group,” who “performed all the tasks given to him at a high level.” When the employee subsequently sued for age discrimination, the Sixth Circuit rejected the company’s argument that it would have discharged him absent an impermissible motive because he was an inferior performer compared to the younger worker. While there was some evidence to support this, the court found that a genuine fact issued existed, thanks in part to the supervisor’s letter. Although not a “glowing recommendation,” it was enough, in the court’s opinion, to establish that the employee was a competent worker. Accordingly, the employee could proceed to trial on his state law age bias claim.

But it wasn’t really a recommendation. Just one day earlier, a federal district court in Virginia found that there was a fact issue as to whether an assistant librarian, who sued a school board for religious discrimination, was performing satisfactorily at the time of her discharge. In this case, the court found that there was ample evidence that she was having performance problems. Despite this, it denied the employer’s motion for summary judgment based in part on the favorable letters of recommendation that the principal and assistant principal wrote for the employee immediately after she was terminated. While the employer argued that the letters did not actually “recommend” the employee for any job and that neither letter expressly stated that she was performing satisfactorily in her job, the court was not persuaded. “Viewing both letters from the perspective of a future potential employer who received them, the message conveyed is much simpler: [the employee] was a great employee.” Thus, in the court’s view, the letters provided at least some evidence that she was performing satisfactorily.

While in both of these cases, the employers, or at least the supervisors, appeared to be trying to “do the right thing” for employees who just lost their jobs — one in a downsizing and the other in part because of a personality conflict  — the recommendation letters were used by both employees to support their contention that they were not fired due to poor performance but rather because of their employer’s discrimination. For those employers that do not absolutely prohibit letters of recommendation, and even for those that do, these cases provide yet one more reminder of the importance of training all supervisors to understand the difference between their personal opinions and actions, and those actions that arise out of their employment status that could be attributed to their employer.

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Is it retaliatory to fire an employee who acts out in mediation?

August 12th, 2013  |  Joy Waltemath  |  Add a Comment

Because retaliation charges were the number one charge received by the EEOC in fiscal 2012 — 38 percent of all charges filed — they are worrisome for employers, notwithstanding this summer’s Supreme Court Nassar decision tightening the proof requirement to but-for causation. Against this backdrop, the Seventh Circuit recently decided a retaliation case that is raising eyebrows.

“Take this job and shove it.” In Benes v AB Data, Ltd, an employee who had worked for only four months filed an EEOC charge of gender discrimination. During EEOC-arranged mediation, the parties went to separate rooms; as is typical, the mediator would shuttle back and forth to relay offers and counter-offers. The employee became so upset with a proposal that, against protocol, he stormed into the room occupied by the employer’s representatives and loudly said: “You can take your proposal and shove it up your ass and fire me and I’ll see you in court.” Having said his piece, the employee stalked out, leaving the room’s occupants shaken. Within an hour, the employer accepted his counterproposal — it fired him.

Firing as sanction for mediation misconduct. In the employee’s subsequent Title VII retaliation suit (he abandoned his sex discrimination claim – surprise), the Seventh Circuit concluded that the employee was fired for misconduct during the mediation, not for making a charge of discrimination. If misconduct during litigation can form the basis for sanctions, why should misconduct during mediation be consequence-free? After all, Title VII only forbids employer actions that would dissuade a reasonable worker from making a charge or participating in an investigation of discrimination. Being fired for an egregious violation of mediation protocols wouldn’t discourage a reasonable worker from making or supporting a charge of discrimination any more than sanctions for misconduct in court discourage the filing of lawsuits, reasoned the court. What those sanctions discourage is the misconduct.

Employees aren’t insulated from their conduct that takes place within an investigation of discrimination if that would warrant termination outside an investigation, it said. Think about it: If the employer would have fired an employee who barged into his supervisor’s office, in the presence of others, and said what the employee said, then the employer was entitled to fire him for doing the same thing in mediation. Title VII “does not create a privilege to misbehave in mediation,” the court concluded.

Who imposes the sanctions? Nor did the Seventh Circuit make much distinction between court- or mediator-imposed sanctions for mediation misconduct, and employer sanctions — one party to the mediation unilaterally imposing its own “self-help” remedy.

And what was the misconduct? The court’s opinion was fuzzy about how it defined the parameters of the misconduct here. On the one hand, it seems like the court found the actual breach of mediation protocol (ignoring of the shuttle-diplomacy approach and barging into the employer’s representatives’ room) was the actual misconduct. Characterizing the employee’s conduct as sabotaging the mediation session, the court said: “Put to one side what he said there.”

However, the court said that if an employer could fire an employee “who barged into his superior’s office in violation of instructions, and said what Benes did, then it was entitled to fire someone who did the same thing during a mediation” (emphasis added). Given the Seventh Circuit’s reliance on its earlier opinion in Hatmaker v. Memorial Medical Center, in which it held that participation in an employer’s purely internal investigation doesn’t insulate an employee from being fired for “making comments” that “demonstrated bad judgment,” including “making frivolous accusations,” it appears that the court was extending its holding. Was it just the breach of mediation protocol? Or was it the words spoken?

But this was mediation. Wait. This didn’t happen in the supervisor’s office, actually. Nor did it occur in the context of an employer’s internal investigation. This took place in mediation; EEOC-arranged voluntary mediation, which, as Francine D. Schlaks, Ph.D., J.D., a federal mediator with significant agency experience, pointed out, “is strictly voluntary. As such, there should be no sanctions at all for misconduct that sabotaged the mediation session. The entire idea of mediation is for people to be able to talk, discuss and negotiate in complete confidentiality, using their own negotiation techniques,” she said.

Sanctions for mediation misconduct. David Wachtel, of Bernabei & Wachtel, a Washington D.C., law firm representing employees, suggested that mediator sanctions in a voluntary mediation could themselves be troubling; mediation should be “a uniquely safe environment.” Both Wachtel and Schlaks agreed that they would draw a line by only imposing sanctions for misconduct during a mediation that involved “violence, realistic threatened violence, and breach of confidentiality.” Additionally, in court-ordered mediation, Schlaks would add to that, “not showing up to a mandatory mediation and, possibly, failure to bring a person with authority to the mediation.”

Should mediators impose sanctions? Wachtel pointed out that in “a voluntary process, the biggest threat to parties is that if the mediation fails, they will both spend money and time in litigation. It shouldn’t take more than that to get cooperation.” Schlaks concurred. “In a voluntary mediation, there should be no sanctions,” she said. “In a court-ordered mediation, perhaps they should be responsible for the mediator’s fees and any court costs.”

Wachtel found the result troubling, given that either “barging in” or “heated language” during a voluntary mediation are part of protected activity. That’s not to say that anyone is suggesting the employee’s behavior in mediation was appropriate.  “If Benes had barged into his supervisor’s office, rather than a mediation room, and said, ‘take this job and shove it,’ I would have ruled the same way the Seventh Circuit did,” Wachtel said. “If he disrupted a meeting and ranted for 20 minutes, at anything but a mediation,” he stressed, “I would also have ruled for the defense.”

Stressing the mediation context, Schlaks offered this example: “What about the 23-year-old female who gets overwrought in a joint session and refers to the boss who groped her as ‘that bastard?’” she asked “After this case, is there no longer a clear line saying she can’t be fired for referring to her boss with disrespect?”

What’s good for the goose is good for the gander. What can employers learn from this case?

  1. Your conduct in mediation could be subject to sanctions as well. Make sure that employer representatives in mediation have familiarity with the facts and settlement authority. Remember that employer actions, including making unrealistically low offers or frivolous accusations, could also be seen as “sabotaging the mediation” under the Seventh Circuit’s approach.
  2. Fire in haste, repent in leisure. Notably, the employer here took just one hour after the employee’s outburst to fire him. That earned it a trip not only to district court but also to the Seventh Circuit, with the attendant time, expense, and distraction that litigation (and an appeal) entails.
  3. Resist the temptation to resort to self-help. What might have happened if the employer had allowed the mediator to handle the employee’s misbehavior: to institute a cooling-off period or reschedule the mediation? It’s impossible to know. However, not all courts might be as willing to find that what an employee did during voluntary EEOC mediation of a Title VII charge was not protected activity.

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