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Sacked employee who declined free passes to strip club advances retaliation claim

By Brandi O. Brown, J.D.

Two employees who allegedly were fired for making a false report about a threatening coworker will proceed with their Maine Human Rights Act and other claims against their former employer, a federal district court in Maine ruled. One of the employees was already on the outs with his boss for refusing free passes to a strip club; his act of declining the passes could amount to opposition, the court explained. It also permitted the employees to go forward with their whistleblower and defamation claims, denying the employer’s motion for summary judgment (Porietis v. Tradesmen International, LLC, January 3, 2017, Singal, G.).

Declined passes, called “a pain in the ass.” One of the plaintiffs, a part-time recruiter for the construction labor support company, declined complimentary passes to a strip club offered to him by the highest-ranking employee in the office. He told his superior, in so many words, that his wife would not like it. Although the superior appeared “shocked,” they did not discuss the matter further. However, the superior did discuss it with another employee—a field representative in the office (and the second plaintiff in the lawsuit). The superior told that employee that the recruiter was “a pain in the ass” and that they needed to get rid of him. In fact, the superior did reduce the recruiter’s hours.

The next day, the recruiter contacted corporate counsel and told her about the offered strip club passes, among other things. He told her he was going to contact the state’s Human Rights Commission concerning his belief that he had been retaliated against for refusing the passes. In fact he did call the Commission. Meanwhile, the employer investigated the matter and disciplined the superior. Also during that time period the superior told the field representative that he believed the recruiter was going to file a retaliation lawsuit and that he was a “troublemaker.”

Fired after reporting erratic employee. Around the same time, the recruiter and the field representative attended a job fair with a third employee. According to both, the other employee was acting very erratically. On the drive there, he screamed at the recruiter about not being a “team player,” and the recruiter switched to the car driven by the field representative. At the fair, he transferred his focus to the field representative: he got into the field representative’s face and spit and cursed at him. The recruiter feared for the field representative’s safety.

The field representative later called the superior and told him that the third employee had been violent and that he was afraid that he was going to hit him. The recruiter made an incident report about the altercation, which he referred to as “the brawl at the mall.” The field representative also reported the matter to human resources after other attempts to resolve the matter failed. The employer investigated, but did not speak to any of the job applicants who were actually at the table. Nevertheless, the employer concluded that both employees had made a false report and fired them for misconduct. It reported this decision to persons in human resources and payroll, and also to various outside parties, including potential employers.

No res judicata. The field representative applied for unemployment benefits and after a hearing the state’s labor department found that the employer failed to show he had engaged in misconduct. Both employees later filed suit, jointly, alleging violations of the MHRA and the Maine Whistleblowers’ Protection Act. They also asserted claims for defamation. In a motion for partial summary judgment, the employees contended that the employer was barred from arguing that the reports were false because of administrative res judicata. The court denied the motion, explaining that the statutory language of the Maine Employment Security Law explicitly provided that findings of fact in unemployment benefits proceedings could “only have preclusive effect in other unemployment proceedings.” Moreover, the present action and the prior proceeding have “essential dissimilar burdens,” the court said.

“Trialworthy” evidence of retaliation. However, the court also denied the employer’s summary judgment motion. With regards to the recruiter’s retaliation claim, there was a “trialworthy” issue whether his response to the offer of free strip club passes amounted to opposition to what the employee “believed was improper and unlawful activity.” A belief that the offer was inappropriate was not sufficient; still, the court nevertheless found there was “trialworthy evidence that retaliation was the result of a complaint tied to one of the MHRA’s protected categories, such as sex.” There was also disputed evidence regarding the decision to cut the recruiter’s hours and a triable issue on pretext.

Whistleblower claims. A jury also could conclude that the employees’ reporting of the third employees’ behavior was made in good faith and supported by “reasonable cause.” Contrary to the employer’s assertions, there was sufficient evidence for a reasonable jury to find that they both “subjectively believed” that the third employee “had acted aggressively and posed a danger of future violence” and that their belief was “objectively reasonable.” Moreover, they presented evidence of a causal connection—they were fired for making false reports—and there was evidence from which a reasonable jury could conclude that this reason was pretextual, including the weakness of the investigation and the prior comments by the superior “suggesting antipathy” towards the recruiter.

Defamation claims. Their defamation claims also survived. Although some of the statements were subject to a privilege, some of the statements were subject “only to a conditional privilege.” A reasonable jury could conclude that the employer abused that privilege and was, therefore, liable for defamation.