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Telling a manager to stop harassing is a protected activity

May 1, 2015

By Anthony Kaylin, courtesy of SBAM Approved Partner ASE

The following could be the outline for a movie of the week: a rogue manager, a staffing agency, three women and a man, a complaint, insufficient investigations, termination of the three women and the man; and an EEOC charge. Put them all together and what do you get?  A $1.4 million dollar jury verdict.

The Tennessee case was adjudicated in the federal Sixth Circuit, which also covers Michigan. An important element of the case was whether or not firing a male employee who confronted the rogue supervisor about his harassment of several female colleagues constituted retaliation under Title VII.

New Breed is a supply-chain logistics company with a warehouse in Memphis, Tennessee (the “Avaya Facility”). James Calhoun was a supervisor in the Receiving Department in the Avaya facility. Tiffany Pete, Jacquelyn Hines, Ms. Capricius Pearson and Christopher Partee, a forklift driver, all worked for Mr. Calhoun. Pete and Hines were staffing company temps; Pearson and Partee worked directly for New Breed.

Every day Calhoun made sexually suggestive comments to Pete, Pearson, and Hines while they were in his department, some of which Partee overheard. Sometimes Calhoun physically touched the women.  When Pearson told him to stop, Calhoun laughed and responded that he wasn’t going to get in trouble because he ran the area. Furthermore, he threatened her by stating that anyone who went to HR to complain would get fired. 

Partee also tried to tell Calhoun to stop. Calhoun responded that he was “just . . . playing with them,” and he “(meant) no harm.” But he evidently sensed that trouble was brewing, so he decided to act preemptively.

Ms. Hines was first. According to her testimony, she was tardy for her shift several times. Calhoun told her not to bother to clock in, that he would take care of it. But on the same day she complained to him about his harassment, the staffing agency called to warn her about her tardiness. Calhoun had never “taken care of it” as he had promised. A week later, the staffing agency fired her. But it came out at trial that Calhoun had unilateral decision-making power for terminating temporary employees in his department.

Ms. Pete was next.  Calhoun learned that Pete intended to make a complaint against him via New Breed’s complaint line. Calhoun beat her to the punch. He went to the Plant Manager and HR to discuss Pete’s performance. Calhoun later testified that they, on his recommendation, decided that both Pete and Pearson would have to go.

Pete, unaware of what had transpired, made her call.  An “Alertline Confidential Memorandum” generated for the call indicated that the caller stated that he or she would not report the issue to management for fear of retaliation. The memorandum also requested that a company representative investigate the matter by speaking with employees at the location.  A HR representative from another location went to the plant to investigate, interviewed Calhoun only, and then requested on the hotline page for the anonymous person to provide corroborating witnesses’ evidence.

Meanwhile, Pete and Pearson were transferred to the Returns Department and a mere four days after Pete’s call both she and Pearson were terminated, officially for performance reasons.  At trial, Calhoun took credit for getting Pete and Pearson fired.

Pete, now no longer employed with New Breed, placed another call to the compliance hotline to identify Partee as a witness. The hotline investigator interviewed Partee, but on the same day as that interview the plant manager terminated him, saying that according to Calhoun, Partee had been “stealing time”—clocking in early or staying late without authorization. At the trial Partee denied the accusations.

Surprisingly enough, the day Pearson was terminated, the hotline investigator recommended Calhoun’s termination as well.

The four workers filed a charge, the three women for sexual harassment and retaliation, and Partee for retaliation.  New Breed wouldn’t settle, and the case went to trial.  The jury awarded all four claimants a total of more than $1.5 million in compensatory and punitive damages and other monetary relief. 

New Breed appealed the judgement, but the Sixth Circuit Court of Appeals affirmed the jury award. The issue of whether asking a harassing manager to stop harassing is a protected activity was new for the Sixth Circuit.  If yes, then any action taken because of that request would be considered potentially retaliation.   New Breed argued that the act of telling Calhoun to cease his harassment does not constitute protected activity under Title VII. The district court rejected this argument, holding that protected conduct “can be as simple as telling a supervisor to stop.”  The Sixth Circuit confirmed the reasoning of the district court. 

The fact that staffing agency employees were involved did not negate the duty of the primary employer, as this case shows.

The first takeaway for HR is simple: Know your managers. The second is less simple but equally basic:  Be sure that all employees—direct or contracted—receive the sexual harassment policy. Then be very clear to all parties about the avenues employees can take once a complaint is filed. HR must ensure all parties that the company will not tolerate sexual harassment or any retaliatory action taken against employees who complain of such action.

Source: EEOC v. New Breed Logistics, No. 13-6250 (6th Circuit Court of Appeals, 4/22/15)

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