Federal jury: software company was negligent in protecting man's reputation
By Kate Brumback
Associated Press
ATLANTA (AP) - An American software company manager figured it was a joke at first when he opened an email and saw his picture in a British tabloid, alongside allegations he had groped a woman at a company conference and said he wanted to eat her "like a marshmallow."
But there he was in the Daily Mail, and it marked the beginning of a nightmare fight to clear his name.
Bart Fanelli's story raises a question relevant to anyone who earns or signs paychecks: If something goes wrong in a work-related context, what are a company's responsibilities to its employee?
Fanelli, who lives in Atlanta, said he felt doubly betrayed: First because his employer, BMC Software, never told him that a woman made allegations against him as part of a broad discrimination complaint she filed in a British employment tribunal; and second, because the company refused to help clear his name once the salacious allegations became public.
"I have a history now of something I never did, that I denied," Fanelli told The Associated Press. "And they did nothing, so here we are."
The company has declined to comment, citing pending litigation, but in court filings it has dismissed as flawed the notion that a company has a responsibility to notify employees of all pending litigation and to ensure their interests are sufficiently represented, even when no employees are named as parties.
The British woman, who worked for a BMC subsidiary, said in a written statement to the tribunal that during a company conference in Nashville in April 2008, Fanelli was "particularly drunk" and put his hand up her skirt and grabbed her backside.
She wrote that he then followed her outside and "told me that he wanted to eat me like a marshmallow(!) and proceeded to kiss my neck."
She also said her boss discouraged her from reporting the incident, which she described as an example of a pattern of discrimination.
About six months after the conference, she filed an internal grievance with the British subsidiary, alleging that she'd been denied accounts and territories because she's a woman. Her complaint mentioned the alleged sexual harassment by Fanelli.
A human resources representative from the British subsidiary contacted Fanelli in November 2008. Fanelli said he was shocked and said he'd never met the woman, let alone touched her.
He called a human resources representative at BMC Software and was told the parent company was working with its British subsidiary to "take care of it," he said. He took that to mean the company would protect his interests, as well as its own, his lawyers wrote.
The grievance was dismissed, and Fanelli said he heard nothing more about the allegation for nearly two years.
Meanwhile, as Fanelli continued to be promoted, the woman turned to the tribunal, which held an 11-day hearing in April 2010. No one told Fanelli to present his side, his lawyers said.
The tribunal found the woman was justified in some of her claims, including the allegation that Fanelli had sexually harassed her and that the company failed to investigate.
Then, in October 2010, a BMC Software public relations executive sent him the Daily Mail article, and told Fanelli to direct any media questions to him. Under photos of Fanelli and the woman was a caption saying she "was awarded £35,000 for sexual harassment after she was groped by Bart Fanelli (right) and then intimidated into keeping quiet."
Fanelli said he asked the company to put a letter in his personnel file and make a public statement saying he didn't sexually harass the woman, but the company refused.
BMC Software has said in court filings that it declined Fanelli's requests because its internal investigation into the woman's allegations was inconclusive, and it doesn't publicly comment on legal matters.
Fanelli quit BMC Software two months later to join a startup. He hired a lawyer and sued the company, accusing it of fraud and negligence.
BMC Software's lawyers noted in a response that neither Fanelli nor the parent company was a party to the case against the subsidiary, that Fanelli was mentioned only briefly in the woman's complaint, and that in her statement, she wrote that her encounter with Fanelli was "a minor contributor to my injury."
The "marshmallow" quote made him the focus of media coverage nonetheless.
A federal jury last year found that BMC Software was negligent, awarding Fanelli $120,000 in damages. A federal appeals court in Atlanta heard the company's appeal on Friday.
Published: Mon, Dec 19, 2016
