Iowa Shoots Foot in Discrimination Case

Liable for Retaliation, not Discrimination

Here’s every employer’s nightmare.

A jury in Iowa last week awarded a former state employee $130,000 in damages after finding she was fired from her state job as a mailroom clerk in retaliation for  filing a complaint about race discrimination.

The jury, however, said there was no evidence that Dorothea Polk, 53, who is black, was a victim of race discrimination.

This means that the damages are attributable to the inept handling of her race discrimination complaint by the state of Iowa.

Polk said she spoke with a human resources officer, Jackie Mallory after Polk was passed over for promotion to a clerk’s job in the office of  Iowa Workforce Development.  During the conversation, Polk said that Mallory told her “You people think you’re entitled to preferences.”

Polk filed a complaint with the Iowa Civil Rights Commission alleging race discrimination in May 2006 and was fired two months later.   Polk’s  managers said she was ineffective at running the office’s mail room and “disrespectfully challenged authority.”

The jury verdict came after a two-week trial.

Another issue in Polk’s case involved an allegation by her attorneys that the state destroyed or lost a report commissioned by former Department of Administrative Services director Mollie Anderson that said racism played a part in some decisions made in the Iowa Workforce Development office. In a 2008 video deposition shown to jurors in the trial Anderson said she’d seen the report, Polk’s attorneys said.

No copy of the report, however, was produced by the state for trial.

In his closing arguments, Assistant Iowa Attorney General Tyler Smith disputed that a “secret report” ever existed, arguing that Anderson misspoke or was confused during a deposition in another case.

The lesson – an employer can be found liable for retaliation even if a jury finds there is no substance to the underlying complaint.

 

Mediation Goes Awry for Worker

After Outburst, He Won’t See Employer in Court

There is a new way for a worker to lose a lawsuit in federal court.

A three-judge panel of the U.S. 7th Circuit Court of Appeals in Chicago, IL, ruled recently that a worker could be fired for misbehaving during a mediation session called to resolve his complaint of sex discrimination.

Michael Benes had charged his Wisconsin employer, A.B. Data, Ltd. with sexgaveldiscrimination after working for the company for four months.

 The U.S. Equal Employment Opportunity Commission arranged for mediation in which, after an initial joint session, the parties separated into different rooms and a go-between relayed offers.

Upon receiving a settlement proposal that he thought too low, court papers say Benes “stormed” into the room used by A.B. Data Ltd. representatives, and said loudly: “You can take your proposal and shove it up your ass and fire me and I’ll see you in court.”

The company accepted Benes’ counterproposal but then fired him.

Retaliation

Benes filed suit under the anti-retaliation provision of Title VII of the Civil Rights Act, 42 U.S.C. 2000e–3(a), which bans retaliation because a person “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” [Emphasis supplied].

A magistrate judge upheld Benes’ dismissal, finding that Benes was fired for misconduct during the mediation, not for making or supporting a charge of discrimination.

The appeals court agreed and upheld Benes termination.

In the past, Benes’ misbehavior might have resulted in a sanction by the court or his employer.

Ignores the Employer’s Behavior

An opinion written by Chief Judge Frank A. Easterbrook states – without explanation – that Benes “abandoned” his claim of sex discrimination upon filing the retaliation complaint. This is somewhat baffling in that the original complaint of sex discrimination obviously was the underlying basis for the retaliation complaint.  Benes would never have been engaged in mediation if he had not filed the discrimination complaint. And Benes would not have been fired if he had not engaged in mediation.

The appellate panel proceeded to completely ignore A.B. Data’s  behavior and to focus only upon Benes’ conduct. 

Judge Easterbrook said Benes’ actions constituted a “serious breach” of the mediation protocol, adding, “If A.B. Data would have fired a person 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.”

The appellate panel said that Title VII does not establish a “privilege to misbehave” in mediation.

Chief Judge Easterbrook writes that the prospect of being fired for an egregious violation of a mediator’s protocols would not discourage a reasonable worker from making a charge of discrimination or from participating in the EEOC’s investigation.

Impact of Harassment

The details of the alleged discrimination suffered by Benes were not included in the appellate decision, nor are the details of the offer submitted by A.B. Data to resolve Benes’ complaint.

Those of us who work in the area of workplace bullying and abuse are familiar with the well-documented mental and physical stress suffered by targets over time, which occasionally results in erratic or self-defeating behavior. For these and other reasons,  mediation is not ideal in these cases.

Benes clearly did himself no favors with his hotheaded behavior. Still, this decision appears to be yet another indicator of the lack of sympathy for the problem of workplace abuse in the federal courts, where, coincidentally,  judges have lifetime tenure.

Research shows that employment discrimination cases are dismissed at a far higher rate than other types of cases in federal courts before they ever reach a jury.

Workers beware – any breach of civility on your part at any point in the proceedings can have severe consequences. 

When the Employer is the Bully

One of the most difficult workplace bullying scenarios occurs  when the employer is the bully.

There may be no one to complain to except the harasser.

This scenario occurred to three former employees of a Baltimore medical practice who were subjected to sexual harassment  by two of the company’s highest ranking officials.  They complained to the U.S. Equal Employment Opportunity Commission  (EEOC ), which announced Tuesday that a federal jury had awarded the women $350,000 in damages.

The EEOC filed the lawsuit on behalf of the women against Endoscopic Microsurgery, alleging that Associate’s Chief Executive Officer, Dr. Mark D. Noar, M.D., and  its Chief Financial Officer Martin Virga subjected the women to frequent unwanted sexual comments, physically touching and grabbing a female worker’s rear end, kissing and blowing on female employees’ necks and other sexually egregious comments and touching.

According to the EEOC, after Linda Luz, a receptionist, rejected their advances, the medical practice began retaliating against her by issuing unwarranted discipline, rescinding approved leave, and eventually firing her.

Administrator Jacqueline Huskins also experienced unwanted sexual advances from Noar and Virga, as did nurse Kimberly Hutchinson from Noar.

The Baltimore jury of nine returned a unanimous verdict for the plaintiffs and awarded each woman punitive damages of $110,000. The jury also held the claimants were entitled to compensatory damages in amounts ranging from $4,000 to $10,000.

Sexual harassment and retaliation for complaining about it violate Title VII of the Civil Rights Act of 1964.

It says something about this employer that it failed to negotiate a settlement in this case when it had the opportunity to do so. The EEOC filed suit after attempting unsuccessfully to reach a pre-litigation settlement through its conciliation process. Publicity from this fiasco is not likely to encourage new patients to flock to the clinic, nor is it likely to encourage confidence in these medical professionals from existing patients. Duh.

“This verdict is significant because it reminds high-level officials who function as the employer that their high level does not give them license to abuse women – they must treat employees as professionals,” said Debra Lawrence, regional attorney of the EEOC’s Philadelphia District Office.

 

Desperate Housewife Bullied?

Judge Elizabeth White declared a mistrial on 3/19/12 after the jurors reported they were deadlocked. Eight supported actress Nicollette Sheridan’s claim; four didn’t. .Judge White on 3/13/12 issued a directed verdict dismissing the battery claim  and Michael Reinhart, who has supervised construction of the show’s sets since it began eight years ago, testified he was copied on an email in 2010 — shortly after Sheridan filed her lawsuits — in which ABC/Disney executives discussed having IT wipe computer hard drives to eliminate any reference to Sheridan’s termination. And the Human Resources so-called “professional” who investigated Sheridan’s complaint that she was slapped by Cherry failed to interview Cherry!!! PGB

This woman was allegedly assaulted by her boss and then killed off.

The trial began this week in a case brought by Actress Nicollette Sheridan, formerly of the ABC soap opera Desperate Housewives, who alleges she was whacked upside the head by the hit show’s creator Marc Cherry and then killed off  when she complained to ABC.

Sheridan alleged Cherry slapped her  in the face with his hand during a rehearsal on September 24, 2008 after the two had an argument regarding a cut line of dialogue. When Sheridan complained to ABC, she says she was fired in retaliation — her Desperate Housewives character, Edie Britt, was killed in a freak electrical accident in April of 2009.

ABC has argued that the decision to kill off Edie Britt was made prior to the alleged smackdown and that the supposed slap was a mere tap, done for the purposes of artistic direction.

“This is a man hitting a woman in the head — hard — without her consent,” said Sheridan’s attorney, Mark Baute.

Battery occurs when the defendant’s acts intentionally cause harmful or offensive contact with the victim’s person. While battery requires intent, the prevailing tort definition does not require an intent to harm.  It is only necessary that the defendant intend to cause either harmful or offensive contact.

Sheridan’s lawsuit initially alleged damages over claims of sexual and gender harassment, assault and battery, intentional infliction of emotional distress, wrongful termination and more. However, during the pre-trial phase, the judge threw out some claims and the actress dropped others. Now the case involves claims of wrongful termination and battery.

If Sheridan wins, a judge has ruled that she will be eligible to reclaim one year’s salary, not the $20 in pay for the show’s full run that she originally sought. Her attorneys are seeking almost $6 million.

A sad reality of this type of case is that Sheriden, 48, is out in the metaphorical cold while ABC continues to be a major television network. ABC lists as potential witnesses many of Sheridan’s former co-workers – including Desperate Housewives cast members Marcia Cross, Teri Hatcher, Felicity Huffman and Eva Longoria. Of course, if Sheridan’s allegations are true, the remaining Housewives stars presumably do not wish to be killed off like Edie Britt until the series ends this season.