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Low-level supervisor who did not report alleged harassment does not create liability for company that investigated as soon as plaintiff complained.
A female bakery employee who first alleged that she was sexually harassed by her supervisor on the day she resigned cannot maintain her Title VII claim, even though she alleged that her coworker, an entry-level supervisor, had been aware of the alleged harassment.
After the plaintiff, also an entry-level supervisor, complained of harassment in her resignation letter, her employer conducted a full investigation, eventually concluding that no harassment occurred. She sued, and the bakery raised the so-called "Faragher-Ellreth" defense, which requires two things:
1. A showing that the employer has taken reasonable steps to prevent harassment where it might occur.
2. A showing that the plaintiff failed to take advantage of the employer’s harassment-prevention/reporting policies.
In this case, the plaintiff admitted she did not report the harassment until the day she resigned. Instead, she argued that her coworker had witnessed many of the harassing statements, which were allegedly made by his and the plaintiff’s mutual superior, and his knowledge should be imputed to the defendant.
The court disagreed. First, it noted that the defendant had voluntarily adopted a reasonable policy to prevent harassment. Although the policy required supervisors to report harassment, the court would not hold the bakery liable in this case. It noted that the plaintiff’s coworker was merely an entry-level supervisor who actually reported to the alleged harasser. To impute his knowledge to the employer would discourage employers from adopting antiharassment policies that required supervisors to report such behavior. In this case, the plaintiff had not made a formal complaint; she merely alleged her coworker had witnessed many of the comments.
This case describes the two factors a defendant must prove before it can claim a defense to allegations of sexual harassment. In this case, the defendant’s reasonable response to learning the plaintiff’s allegations protected it from liability. Note, however, that in some cases, a supervisor’s knowledge of harassing behavior creates knowledge for the employer as well; the difference in this case was that the witness held a low-level position, and there was an absence of any formal complaint.
--Paul Freehling, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see Chaloult v. Interstate Brands Corp., 2008 U.S. App. LEXIS 18529 (1st Cir., August 28, 2008)].
Spanish-speaking employee’s failure to understand arbitration provision of employment agreement before he signed it does not excuse him from being bound to arbitrate an employment dispute.
An employer that required its employees to sign an English-language employment contract could enforce the arbitration provision of that contract against a Spanish-speaking employee who did not know what he was signing, a federal court recently held.
The employee, who could speak or read very little English, worked as a contract welder. He passed an English proficiency exam and took a job as a welder with the defendant. Although the plaintiff had paid translators to help translate employment documents in the past, he did not do so with this job. As part of his orientation, he attended a two-hour employment meeting conducted entirely in English. A supervisor asked another employee to explain to the plaintiff what was said at the meeting and also to help the plaintiff fill out employment documents. The other employee did so but did not explain the arbitration provisions of the contract, although they took up nearly half of the 13-page agreement.
The plaintiff was fired for misconduct about a year after being hired. He protested his employer’s attempt to arbitrate the dispute, claiming he was unaware of the arbitration requirement when he signed his employment agreement. Applying ordinary contract principles, the court found that ignorance of the provision was no excuse, even when it was caused by the employee’s inability to read or understand English. The employee was not claiming fraud or alleging that the contents of the agreement had been misrepresented to him. By signing the contract as he did, he showed that he would abide by all the terms. The court pointed out a number of things the employee could have done before signing the agreement, such as asking his coworker to translate word-for-word or taking the document home and getting outside help with translation, but he did not. Therefore, he would be bound by his agreement to arbitrate his employment dispute.
This case should put employees on notice to ensure that they understand all terms and provisions in an employment contract before signing it.
-- Paul Freehling, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see Morales v. Sun Constructors Inc., 2008 U.S. App. LEXIS 18513 (3d Cir., August 28, 2008)].
Employer that fails to designate "leave year" for FMLA purposes must give employee Family and Medical Leave Act (FMLA) leave based on 12-month period most beneficial to employee.
A Michigan college that fired an employee for taking more than 12 weeks of medical leave violated the FMLA, because it did not inform employees that it considered the school’s fiscal year as its leave calculation year as well.
The employee, the school’s director of student affairs, took a leave of absence under the FMLA beginning in the middle of December 2004. She was fired on March 18, 2005; her employer contended she had exceeded her 12 weeks of FMLA leave at that time. The plaintiff argued that the leave she took in 2004 should not be counted towards the 12 weeks to which she was entitled in 2005, and that she was fired after being on leave for only 10-and-a-half weeks in 2005.
The court agreed with the plaintiff’s method of calculating leave. It pointed out that FMLA regulations allow employers to designate a "leave year" in a number of ways, including calendar year, fiscal year or a rolling 12-month period. However, if the employer fails to clearly communicate its choice of leave year to employees, an employee taking leave may select the method most beneficial to him. In this case, the school’s employee handbook granted employees the right to take up to 12 weeks of FMLA leave per year but failed to explain that it considered a year to be the same as the school’s fiscal year, not the calendar year. The court noted that the college’s designation of its fiscal year as its leave year was not an "open act" as required by the regulations. The defendant argued that the plaintiff should have assumed the school meant to use its fiscal year, because that was how it calculated vacation leave, which was dealt with in an entirely different section of its handbook. Requiring an employee to make such an assumption did not amount to an “open” explanation of the employer’s leave year, and thus the plaintiff was entitled to use whatever year calculation most benefited her.
This case explains what an employer needs to do if it wants to select a particular method of calculating its leave year for FMLA purposes. The selection needs to be openly and clearly communicated to employees.
-- Paul Freehling, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see Spencer v. Marygrove Coll., 2008 U.S. Dist. LEXIS 65515 (E.D. Mich., August 26, 2008)].
There’s no retaliation against an employee who alleged sexual harassment, because the employer had independent evidence that the worker had falsified his claim, justifying his termination.
A municipality had a legitimate, nondiscriminatory reason to fire a male park ranger after it obtained evidence he falsified a claim of sexual harassment, a federal court recently held. The employee also had a history of violent outbursts and other similar personnel problems, all of which justified his termination. The employee originally complained that a female coworker made suggestive comments to him and once showed up at his home unannounced.
The city investigated his complaint and concluded that no harassment occurred. In support of its decision, the city noted that the plaintiff had provided the alleged harasser with a hand-drawn map to his home so that she could find it, and also that he had told a supervisor he was probably wrong for having made his complaint in the first place. Based on the evidence that the plaintiff falsified his complaint, the city fired him, and he sued for retaliation.
The court explained that even if the plaintiff had engaged in protected activity when he complained about sexual harassment, his complaint was not the reason he was terminated. He argued that the defendant’s claim that it fired him for falsifying his sexual harassment complaint was actually pretext for retaliation, and that his complaint was the real reason. The court disagreed. There was no evidence of pretext, it explained. Unlike other cases that relied only on evidence from an interested party in making a termination decision, in this case, the employer had the statement of a neutral supervisor, who testified that the plaintiff admitted to him that he should not have filed a complaint. The employer also showed that it viewed the plaintiff’s behavior as yet another violation of its personnel policies; he had previously been disciplined for making threatening statements and engaging in workplace violence. Therefore, the city was justified in its termination decision.
This case demonstrates that just because an adverse employment action follows a complaint of harassment, discrimination or other protected activity, the adverse decision is not automatically an act of retaliation.
-- Paul Freehling, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see Richey v. City of Independence, 2008 U.S. App. LEXIS 18795 (8th Cir., September 3, 2008)].