Rich Meneghello
BridgeTower Media Newswires
They say things often come in threes – here I’ll review three recent court decisions to help employers learn from the mistakes of others.
“Shake hands and play nice”
The first decision was handed down in November 2016 from the Seventh Circuit Court of Appeals. Maria Gracia was an assembly line supervisor for Illinois-based SigmaTron who began to run into trouble with her manager in 2007. She alleged that Patrick Silverman began sexually harassing her by sending her graphic email photos, calling her late at night, asking her out on dates, and sending her unwanted text messages. She repeatedly turned him down; however, after receiving one such “no” from her, Silverman suspended her for two days and claimed it was for excessive tardiness.
To seek relief for the action, Gracia requested a meeting with her human resources representative, who brought her to meet with a company vice president and discuss her complaints. After hearing Gracia’s side of the story, the vice president invited Silverman – the alleged harasser and retaliator – into the meeting to help sort things out. The HR rep and the vice president heard both sides of the story and concluded the meeting by telling Gracia to “shake hands with Silverman and work together” to solve their disputes.
Gracia couldn’t believe it, so she filed an EEOC sexual harassment charge against the company. Within a few weeks, SigmaTron terminated her employment over a disputed performance issue on the assembly line, and she amended her legal cause of action to include a retaliation claim. The case wound its way to a trial, where a jury awarded her more than $300,000 in damages. Although SigmaTron appealed the case, the court upheld the verdict and Gracia’s victory.
The lesson here is simple: don’t solve employee complaints by telling the disgruntled party to just shake hands and get along better. Investigate the complaint thoroughly, separating the two individuals until a determination is made about how to proceed. If the investigation reveals potential policy violations, take affirmative steps to prevent them from reoccurring, which could include disciplinary measures or additional training.
“Winning the battle, losing the war”
Second, in Virginia, Adonia Smith brought a disability discrimination claim that ended up teaching her former employer a very expensive lesson. Smith was a special education teacher for Loudoun County Public Schools from 2007 until her termination in 2010. Because she was deaf, she made numerous requests for reasonable accommodations that she claims were denied. After her termination, she brought a lawsuit alleging wrongful discharge and disability discrimination.
The case made its way to a trial that ended up in a hung jury. The parties tried it again and in a second trial jurors awarded Smith a grand total of $310 to cover medical bills they believed the employer should have handled. The employer was probably delighted to have received what it believed amounted to vindication after a long struggle – after all, Smith originally sought more than $300,000 from the employer. But then the court awarded Smith’s attorneys $101,797 in fees and costs. On top of the attorneys’ fees the employer had to pay its own counsel an amount that probably fell somewhere in that same range. Loudoun County Public Schools had to shell out somewhere in the six figures as a result of this claim.
The lesson here can be taken straight from “The Art of War” by Sun Tzu: “He who wishes to fight must first count the cost.” Was it really worth, in the long run, somewhere in the neighborhood of $200,000 to obtain a minor victory in a courtroom? Some employers will say they will fight “over the principle” of the matter and wouldn’t mind shelling out top dollar to obtain a win in court. And that’s fine, as long as sticker shock doesn’t result when the final bill is presented at the end of the case. Before gearing up for legal combat, talk to one’s lawyer about what a win might cost, and discuss alternatives to fighting if the price tag is too high.
“Hire well, but fire fast”
The final lesson actually stems from an employer’s victory, which comes as a result of it following the advice I often dole out to my clients: “hire well, but fire fast.” A Minnesota employer, Optomec Inc., hired a 55-year-old man named Thomas Nash to aid in the assembly of 3-D printers. The employer quickly determined that Nash was not the right man for the job. Early evaluations pegged him as “not a particularly skilled technician” and described how he was not adept at independent troubleshooting. Within six months, the supervisor terminated his employment.
Nash thought his younger peers had been treated better than he’d been and that he’d gotten the cold shoulder from his bosses, so he filed an age discrimination claim. The Eighth Circuit Court of Appeals rejected his claim and cited the timing as a crucial factor. After all, the court said, it would make little sense for an employer to hire a worker at age 55 and then suddenly develop a dislike for older workers. Because the same supervisor both hired and fired Nash, each time when he was 55, the court ruled for the employer.
The lesson here: don’t delay discipline, and terminate new workers if it is quickly determined that they won’t be a good fit. That will save time and money, and could even develop solid evidence in one’s favor should the employee sue after his or her departure.
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Rich Meneghello is a partner in the Portland office of Fisher Phillips, a national firm dedicated to representing employers’ interests in all aspects of workplace law. Contact him at 503-205-8044 or rmeneghello@fisherphillips.com, or follow him on Twitter – @pdxLaborLawyer.
