2013 report of the workplace investigations subcommittee of the employment rights ...

108 Pages·2013·0.39 MB·English

2013 REPORT OF THE WORKPLACE INVESTIGATIONS
SUBCOMMITTEE OF THE
EMPLOYMENT RIGHTS & RESPONSIBILITIES COMMITTEE
SECTION OF LABOR AND EMPLOYMENT LAW
AMERICAN BAR ASSOCIATION

Management Co-Chairs: Employee Co-Chair: Union Co-Chair:

Susan Hartmus Hiser, Esq. Maureen S. Binetti, Esq. Daniel Bonnett, Esq.
Jeffrey Patton, Esq.

Neutral Co-Chair:

Jan Duffy, Esq.

SUBCOMMITTEE REPORT AUTHORS

First Circuit Second Circuit Third Circuit

Julie A. Moore, Esq. Julie A. Moore, Esq. Elizabeth Watson Gramigna, Esq.
Employment Practices Group Employment Practices Group Bourne, Noll & Kenyon
8 Rice Street 8 Rice Street 382 Springfield Avenue –
Wellesley, MA 02481 Wellesley, MA 02481 Suite 507
[phone] [phone] P.O. Box 690
[phone] - Cell [phone] - Cell Summit, New Jersey 07902-0690
[phone]- Fax [phone]- Fax [phone] Ext. 324
[email protected] [email protected] [phone] - Fax
[email protected]
Sandra Pullman, Esq.
Office of the NYS Attorney Jessica Sussman Elichman, Esq.
General JSE Workplace Solutions LLC
Civil Rights Bureau [phone]
120 Broadway, 23rd Floor Livingston, NJ 07039
New York, NY 10271 [email protected]
[phone]
[phone] - Fax
[email protected]
Fourth Circuit Fifth Circuit Sixth Circuit

Maureen S. Binetti, Esq. Susan Hartmus Hiser Susan Hartmus Hiser
Stephanie D. Gironda, Esq. Danielle C. Beasley Danielle C. Beasley
Wilentz, Goldman & Spitzer, P.A. Vercruysse Murray & Calzone, P.C. Vercruysse Murray & Calzone, P.C.
90 Woodbridge Center Drive 31780 Telegraph Rd., Ste. 200 31780 Telegraph Rd., Ste. 200
Woodbridge, NJ 07095 Bingham Farms, MI 48025 Bingham Farms, MI 48025
[phone] – Direct [phone] [phone]
[phone] – Fax [phone] – Direct [phone] – Direct
[email protected] [phone] - Fax [phone] - Fax
[email protected] [email protected]
Stephanie M. Jones, Esq.
U.S. Equal Employment
Opportunity Commission (U.S. Alicia D. Johnson, Esq. Wendy C. Hyland, Esq.
EEOC) U.S. Department of Justice Fisher & Phillips LLP
Charlotte District Office Civil Rights Division 220 West Main Street
129 West Trade Street - Suite 400 Employment Litigation Section Suite 2000
Charlotte, NC 28202 950 Pennsylvania Avenue, NW Louisville, KY 40202
[phone] PHB Room 4906 [phone]
[phone] – Cell Washington, DC 20530 [phone] - Fax
[phone] - Fax [phone] [email protected]
[email protected] [phone] - Fax
[email protected]

Seventh Circuit Eighth Circuit Ninth Circuit

Daniel L. Bonnett Daniel L. Bonnett D. Jan Duffy, President
Mark A. Bracken Mark A. Bracken Management Practices Group
Martin & Bonnett, PLLC Martin & Bonnett, PLLC 355 Bryant St. #207
1850 N. Central Avenue, Suite 2010 1850 N. Central Avenue, Suite 2010 San Francisco, CA 94107
Phoenix, AZ 85004 Phoenix, AZ 85004 [phone]
[phone] [phone] [phone] – Fax
[phone] - Fax [phone] - Fax [email protected]
[email protected] [email protected]
Sue Ann Van Dermyden, Esq.
Alexander M. Sperry. Esq.
Van Dermyden Allison Law
Corporation
2520 Venture Oaks Way, Suite 190
Sacramento, CA 95833-4228
[phone]
[phone] - Fax
[email protected]
Tenth Circuit Eleventh Circuit US Supreme Court, Federal and
DC Circuits
Daniel Finerty, Esq. Daniel Finerty, Esq.
Godfrey & Kahn Godfrey & Kahn Maureen S. Binetti, Esq.
780 North Water Street 780 North Water Street Stephanie D. Gironda, Esq.
Milwaukee, WI 53202-3590 Milwaukee, WI 53202-3590 Wilentz, Goldman & Spitzer, P.A.
[phone] [phone] 90 Woodbridge Center Drive
[phone] - Direct [phone] - Direct Woodbridge, NJ 07095
[phone] - Cell [phone] - Cell [phone] – Direct
[phone] - Fax [phone] - Fax [phone] – Fax
[email protected] [email protected] [email protected]

Wendy C. Hyland, Esq. KristyAnne Thompson Tiffanie C. Benfer, Esq.
Fisher & Phillips LLP ThompsonX2 Consulting Group Hardwick Collier LLC
220 West Main Street 4000 Dunwoody Park 179 Broad Street
Suite 2000 Dunwoody, GA 30338 Doylestown, PA 18901
Louisville, KY 40202 [phone] [phone]
[phone] [phone] [phone] - Fax
[phone] - Fax [email protected] [email protected]
[email protected]

Canada NLRB

Melany V. Franklin, Esq. Elizabeth Watson Gramigna, Esq.
Borden Ladner Gervais LLP Bourne, Noll & Kenyon
Scotia Plaza 40 King Street West 382 Springfield Avenue –
44th Floor Suite 507
Toronto, Ontario M5H 3Y4 P.O. Box 690
Canada Summit, New Jersey 07902-0690
[phone] [phone] Ext. 324
[phone] - Fax [phone] - Fax
[email protected] [email protected]

Jessica Sussman Elichman, Esq.
JSE Workplace Solutions LLC
[phone]
Livingston, NJ 07039
[email protected]
TABLE OF CONTENTS
PAGE

U.S. SUPREME COURT ..............................................................................................................1
D.C. CIRCUIT ...............................................................................................................................2
FIRST CIRCUIT ...........................................................................................................................3
SECOND CIRCUIT.....................................................................................................................14
THIRD CIRCUIT ........................................................................................................................21
FOURTH CIRCUIT ....................................................................................................................37
FIFTH CIRCUIT .........................................................................................................................45
SIXTH CIRCUIT .........................................................................................................................52
SEVENTH CIRCUIT ..................................................................................................................57
EIGHTH CIRCUIT .....................................................................................................................72
NINTH CIRCUIT ........................................................................................................................82
TENTH CIRCUIT .......................................................................................................................90
ELEVENTH CIRCUIT ...............................................................................................................92
CANADA ......................................................................................................................................99
NATIONAL LABOR RELATIONS BOARD (NLRB) ..........................................................102

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U.S. SUPREME COURT
Crawford v. Metropolitan Government of Nashville, 555 U.S. 271, 129 S.Ct. 846 (2009)
Facts: During an internal investigation into rumors of sexual harassment of a third party
by Gene Hughes, the Metro School District Employee Relations Director, Vicky Crawford, an
employee, reported that Hughes had sexually harassed her. Metro took no action against Hughes,
but soon fired Crawford, alleging embezzlement. She filed suit under Title VII, claiming that
Metro retaliated against her for her report of Hughes’s behavior in violation of 42 U.S.C.
§2000e-3(a), which makes it unlawful for an employer to discriminate against any employee
“who (1) has opposed any practice made an unlawful employment practice by this subchapter, or
(2) has made a charge, testified, assisted or participated in any manner in an investigation
proceeding or hearing under this subchapter.” The trial court granted Metro summary judgment
and the Sixth Circuit affirmed, holding that “opposed” means “active consistent opposing
activities,” and Crawford had not initiated any complaint prior to the investigation. Moreover, it
held that the participation clause did not protect Crawford because Metro’s internal investigation
was not conducted pursuant to a Title VII charge pending with the Equal Employment
Opportunity Commission.
Holding: Justice Souter delivered the Court’s opinion that the anti-retaliation provision’s
protection extends to an employee who speaks out about discrimination, not on his/her own
initiative, but in answering questions during an employer’s internal investigation. “Oppose” is
undefined by the statute, and thus carries its ordinary dictionary meaning of “resisting or
contending against.” Crawford did not have to take any action other than disapproving of
Hughes’s sexually harassing behavior to “oppose” it, and did not need to make her own
complaint against him. The Supreme Court explained that the Sixth Circuit’s ruling undermined
the statute’s primary objective of preventing discrimination; if employees who respond to an
employer’s questions about harassment are penalized, employees will remain silent.1
Filarsky v. Delia, 132 S.Ct. 1657 (2012)
Facts: Delia, a firefighter employed by the City of Rialto, California, became ill while
responding to a toxic spill. Under a doctor’s orders, he missed three weeks of work. The City
became suspicious of Delia’s extended absence and hired a private investigation firm to conduct
surveillance on him. The private investigators observed Delia buying building supplies,
including several rolls of fiberglass insulation, from a home improvement store. As a result, a
formal internal affairs investigation was initiated and Delia was ordered to appear for an
administrative investigation interview. The City hired Filarsky, an experienced employment
attorney, to conduct the interview. During the interview Delia acknowledged buying the
building materials but claimed that he had not yet done the work on his home. Filarsky
requested permission for representatives of the City to be permitted to enter Delia’s home to
view the building materials but Delia denied the request.

1 Because Crawford’s conduct was covered by the “opposition” clause, the Court did not reach her argument that the
Sixth Circuit also misread the “participation” clause.
1
The interview concluded with Filarsky ordering Delia to produce the materials for
inspection. Immediately thereafter, two representatives from the City followed Delia home and
remained in their car while Delia, his attorney and a union representative brought four rolls of
insulation from Delia’s home and placed them on the lawn. The representatives thanked Delia
and drove off. Delia filed suit under 42 U.S. C. § 1983 against the City, three named city
officials, ten unidentified individuals and Filarsky, alleging that the order to produce the building
materials violated his rights under the Fourth and Fourteenth Amendments. The district court
granted summary judgment to all individual defendants, concluding that they were protected by
qualified immunity. The district court held that Delia had not demonstrated a violation of clearly
established constitutional rights because he was not threatened with discipline or termination if
he failed to comply with the order and because none of the defendants entered his home. The
Ninth Circuit affirmed with respect to all defendants except Filarsky. It held that because he was
a private attorney and not a City employee, he was not entitled to seek the protection of qualified
immunity.

Holding: The Supreme Court reversed the ruling of the Ninth Circuit and held that the
attorney who was retained by the city to assist in the internal investigation of potential
wrongdoing was entitled to seek the protection of qualified immunity. It reasoned that Filarsky
was entitled to the same type of protections available to the government agents with whom he
was working because, like them, he was working in furtherance of the public interest. The Court
opined that the fact that Filarsky was not a permanent, full-time employee did not justify failing
to extend him the protection of qualified immunity that would have been available under the
common law.
D.C. CIRCUIT
Mastro v. Potomac Electric Power Company, 447 F.3d 843 (D.C. Cir. 2006)
Facts: Brian Mastro, a Caucasian, was a System Engineer with defendant (“PEPC”)
when an employee he supervised, Donald Harsley, an African-American, was arrested and jailed.
Harsley asked Mastro for his accrued vacation time to be utilized while he was incarcerated.
Whether Harsley told Mastro that he was in jail at the time became an issue in dispute between
Mastro and Harsley. PEPC planned to fire Harsley for lying to his supervisor about his
whereabouts when he made his vacation time request, but reconsidered after he described his
version of events and claimed that Mastro had always known his whereabouts when he granted
the vacation time. Moreover, another employee, an African-American who was second in
command to Mastro and kept timesheets for Mastro’s team, told management that Mastro did in
fact know the true facts at the time. The company conducted an internal investigation headed by
an African-American Senior Employee Relations Investigator, to determine who, if anyone, was
untruthful. He concluded that Mastro, not Harsley, was lying and, consequently, Mastro was
terminated. Mastro initiated suit under Title VII against PEPC for reverse discrimination.
Holding: The Court held that Mastro offered “ample evidence by which a reasonable
jury could conclude that Potomac’s stated reasons for terminating him were pretextual and that
discrimination motivated its decision,” as the evidence suggested that the investigation, “which
was central to and culminated in Mastro’s termination, was not just flawed but inexplicitly
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unfair.” First, Mastro was not interviewed, although other individuals were. Mastro was only
given an opportunity to offer his version of events at a later date, when management already had
received the results of the investigation, putting Mastro on the defensive and depriving him of
the same opportunity given to Harsley, who was interviewed before the findings were presented
to management. The fact that the investigator spoke to everyone “except the individual at the
center of the controversy, and the only Caucasian, could lead a jury to conclude that there was
reverse discrimination involved in Mastro’s termination.”
The Court also opined that the investigation lacked the “careful, systematic assessments
of credibility one would expect in an inquiry on which an employee’s reputation and livelihood
depended.” For example, the investigator relied heavily on Mastro’s second-in command’s
statements, even though he had much to gain by having his boss disciplined and/or terminated.
Moreover, there was evidence of a strained working relationship between the two; Mastro
testified that the witness had displayed major insubordination toward him on several occasions.
The investigator also ignored major contradictions in the testimony of the witnesses, which could
lead a jury to determine that the investigation was not full or complete, and never attempted to
determine the credibility of any of the individuals he interviewed (e.g., he never explored
whether the individuals interviewed were on a friendly basis with Harsley, or if they had talked
to one another about the incident before speaking with him). The investigator, in fact, remarked
that such considerations were not an “integral part of his investigation.” Finally, his “decision-
making process lacked the appreciable reflection one would expect for resolving such a serious
matter,” as he stated that he relied upon his instincts in determining whether the individuals were
telling the truth, not objective indicia. The Court noted that the failure to consider credibility
when performing the investigation (looking merely at the number of witnesses without making
critical assessments necessary to a thorough investigation) rendered the investigation flawed.
PEPC argued that the mere fact that it conducted an investigation and fired Mastro as a result
was an effective affirmative defense to Mastro’s claims. The Court disagreed, holding that
Mastro presented sufficient evidence to attack the employer’s proffered explanation for its
actions, and that the investigation was not a reasonably objective assessment of the
circumstances, but instead, could be considered an inquiry “colored by racial discrimination.”
Thus, the Court reversed summary judgment in favor of defendant, and allowed the
discrimination issue to be decided by a jury.
FIRST CIRCUIT
Arrieta-Colon v. Wal-Mart Puerto Rico, Inc., a/k/a Wal-Mart Store 1854, 434 F.3d 75 (1st
Cir. 2006)
Facts: Miguel Arrieta-Colon claimed disability discrimination under the Americans with
Disabilities Act as well as hostile work environment due to his disability. He claimed that he
was constantly harassed by supervisors and co-workers about his medical condition and that no
corrective action was taken after he complained. Arrieta suffered from Peyronie’s Disease,
which made it impossible for him to have sexual intercourse. He had surgery to correct the
problem. He complained that he was subjected to a barrage of comments, such as questions by
his Assistant Manager about “how it felt to have [his] new pump.” Some of the alleged
harassment expressed the view that Colon was impotent and needed a pump to get an erection,
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while other alleged harassing statements evidenced an impression that Colon was unusually
enabled because of the implant. For example, co-workers allegedly asked him if they could
“borrow” his pump. Supervisors and managers admitted to participating in the taunting and that
Colon complained about it. No action was taken despite the fact that Colon complained to
superiors in his chain of command. Pursuant to Wal-Mart's open door policy, any manager
having knowledge of harassment "would have had an obligation to investigate." No
investigation was undertaken.
Holding: A jury instruction on the Ellerth-Faragher defense was at issue. The trial
judge declined to give the proposed instruction, as it determined that no reasonable jury could
have concluded that either element of the defense had been met. The open door policy existed
on paper, but had not been put into practice. When Colon complained, no corrective actions
were taken and his complaints were not even recorded.
Forrest v. Brinker International Payroll Company, LP d/b/a Chili’s Grill & Bar, 511 F.3d
225 (1st Cir. 2007)
Facts: This is a workplace romance case gone bad. Allison Forrest was a server and
bartender at Chili’s Bar and Restaurant, and she began to date her co-worker, Mike Vashaw, who
was a line cook. They dated on and off and had a volatile relationship. Eventually Forrest ended
the relationship and began dating another man. As a result, Vashaw allegedly used gender-
specific expletives at work and refused to help Forrest in the kitchen. Forrest complained to the
General Manager, but she also expressed that she did not want Vashaw to be fired. The GM
investigated the complaint and issued Vashaw a verbal warning to stop and behave
professionally, or further action would take place. Shortly thereafter, Vashaw allegedly
continued to verbally abuse Forrest using gender-specific profanity, and Forrest complained to
the Kitchen Manager about Vashaw’s conduct. That manager issued Vashaw a written warning,
directing him to stop negative confrontations, telling him to correct the problem immediately,
and advising him that he would be terminated if he behaved inappropriately again. Forrest was
informed that Vashaw had been warned, and she was invited to advise the restaurant if any
inappropriate behavior continued. A couple of weeks later, Forrest again complained that
Vashaw called her a whore and otherwise acted inappropriately toward her. The company
investigated, found at least one of the allegations to be credible, and terminated Vashaw’s
employment.
Holding: As this was a case involving co-worker liability, Forrest had to show that the
employer “knew or should have known of the charged sexual harassment and failed to
implement prompt and appropriate action.” The Court noted that Forrest complained about
Vashaw’s behavior to managers on at least three (3) occasions, investigations took place, and
action was taken. The Court noted that the “prompt and appropriate” standard often requires the
“sort of case-specific, fact-intensive analysis best left to a jury.” Nevertheless, the Court
concluded that the employer acted reasonably in addressing Forrest’s complaints with
progressive discipline and ultimately firing Vashaw when he did not behave. The Court noted
that the allegations were lodged “between ex-lovers known to have a volatile relationship,” and
also found significant the fact that Forrest told her employer that she did not want Vashaw fired
when she initially complained about him.
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Chaloult v. Interstate Brands Corporation, 540 F.3d 64 (1st Cir. 2008)
Facts: Bonnie Chaloult worked at IBC’s production plant and was a bread supervisor.
Her immediate supervisor was Kevin Francoeur, the Assistant Production Manager. Chaloult
complained that Francoeur repeatedly sexually harassed her during the course of her
employment, yet she failed to complain at any time prior to her resignation. When she resigned,
she submitted a letter stating that Francoeur questioned her personal affairs with another
supervisor and, specifically, accused her of having a sexual relationship with that supervisor.
She stated in her letter that she was no longer comfortable working for Francoeur. When the
company received the letter, the department manager, Paul Santos, met with her that day to
discuss the situation. Santos in turn consulted with Human Resources. After Santos interviewed
Chaloult, he also interviewed Francoeur and co-worker Jim Anderson, allegedly a witness.
Written statements were obtained, and Santos reached factual conclusions including making
credibility determinations. Santos found that Francoeur made an inappropriate and unwarranted
comment, and he issued a warning to him. Chaloult claims that her co-worker, Jim Anderson,
was also a first-level supervisor who was aware of the alleged sexual harassment and failed to act
on the company’s behalf. Anderson was aware of some of the alleged inappropriate behavior,
but testified that he did not believe that Chaloult was offended or that the sexual harassment
policy was implicated. Chaloult never used the term “sexual harassment” in her conversations
with Anderson in describing Francoeur’s behavior.
Holding: The First Circuit affirmed the lower court’s granting of summary judgment in
the employer’s favor. The Court rejected Chaloult’s argument that Anderson’s awareness of the
alleged inappropriate behavior was sufficient to impute liability to the company. It is undisputed
that Chaloult failed to report the alleged sexual harassment. The Court noted that Chaloult and
Anderson both reported to Francoeur, the alleged harasser. The Court distinguished this case
from others where people in management at levels above or at the same level as the alleged
harasser observed or were told of the harassment. The Court also rejected Chaloult’s argument
that the company’s voluntary adoption of a policy requiring all supervisors to report sexual
harassment increases the scope of the company’s legal liability as a matter of law. The Court
noted that one circuit, the Sixth Circuit, has held differently. The Court noted that no claim was
lodged that the company routinely ignored harassment complaints or that there were prior
complaints against others. Chaloult also does not claim that the company acted unreasonably
once she did file a complaint with her letter of resignation. Once the company received the
resignation letter, it promptly interviewed the alleged victim, alleged harasser, and the witness,
made conclusions, and punished Francoeur for his inappropriate language. The employer thus
“was fully in compliance” with the second aspect of the Faragher-Ellerth prong. The Court
noted that “this is a case where the company was deprived of the opportunity to take remedial
action because—with the exception of the one incident Chaloult reported, which Santos
promptly investigated and acted on—Chaloult did not make allegations of sexual harassment
until she filed suit…”
Chadwick v. Wellpoint, Inc., 561 F.3d 38 (1st Cir. 2009) The First Circuit affirmed the
exclusion of expert testimony from Dr. Mary Still, a Ph.D. in Sociology, who had experience in
employment discrimination and sex-based stereotypes. Court excluded testimony because the
"expert, whatever her professional credentials, is not competent to testify about what these
5
supervisors meant, consciously or unconsciously, in using certain words." The Court noted that
it interprets Rule 702 "liberally in favor of the admission of expert testimony," and the appeals
court reviews a district court's ruling on admissibility only for abuse of discretion. "In effect, the
district court believed that there was a mismatch between the expert's knowledge and
qualifications and her ability to helpfully opine on the specifics of this case. The court below
emphasized particularly that Dr. Still's apparent lack of familiarity with the details of this case
rendered her testimony unhelpful to a trier of fact."
Agusty-Reyes v. Department of Education of the Commonwealth of Puerto Rico, 601 F.3d
45 (1st Cir. 2010)
Facts: Olga Agusty-Reyes, a math teacher, alleged that she was repeatedly sexually
harassed by Miguel Hernandez-Cruz, the school director. Agusty rebuffed Hernandez’s
advances. As a result, he allegedly gave her a poor evaluation, delayed his performance
appraisal of her, and subsequently sexually assaulted her. The Department of Education
("DOE") maintained a policy for reporting and investigating sexual harassment allegations, but it
failed to publicize the policy or inform Agusty of it. Agusty complained to the police and DOE
officials about Hernandez’s conduct and tried for months to arrange a meeting to discuss the
issue. When she met with the regional director, he directed her instead to the union and failed to
advise her of the DOE’s sexual harassment policy or advise her how to file an administrative
complaint. Agusty followed up the meeting with a letter and with the union. The DOE took no
action in response to the union complaint, but eventually suspended Hernandez with pay. An
administrative hearing was held, at which time Hernandez and his attorney presented testimony.
The victim, Agusty, received no notice nor was she given an opportunity to testify. An
investigation took place, but Agusty was never interviewed and the investigator relied only on
her written complaint to tell her story. The investigator spoke with or reviewed statements by
other teachers, students, and others who witnessed the most egregious incident, but the
investigator failed to obtain the police report or court records relating to the sexual assault. “A
jury could find the investigation was cursory.” At the DOE hearing that reportedly was to assess
the merits of the claim, Agusty was not given an opportunity to testify and the examining officer
found Hernandez’s version of events to be “worthy of our full credibility.” The examining
officer considered Agusty’s written statement to not be credible.
Holding: The First Circuit reversed the district court’s granting of the DOE’s Motion for
Summary Judgment and remanded the case for further proceedings. The Court considered the
Faragher-Ellerth defense. The Court found “no evidence that the DOE made the slightest effort
to communicate its policy…” In holding that the investigation was “so cursory as to be
inadequate,” the Court relied upon the fact that the alleged harasser was given an ex-parte
proceeding where he could present his own version of events, with counsel, without fear of
rebuttal testimony or corroborative evidence from the alleged victim and witnesses. The victim
was not even given notice of the hearing, and the fact-finder’s decision turned on the credibility
determination that weighed Hernandez’s live testimony against Agusty’s written statement.
These procedures were “inherently unreasonable.” The Court further stated that the DOE had an
obligation to investigate Agusty’s complaints even if she did not precisely follow the DOE’s
formal procedure, as it had notice of harassment outside of the procedure. The notice included
6