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Monday, October 11, 2010

Hostile Work Claim Dismissed Based on Proper Investigation

By Tommy Eden, Attorney

In In a case involving Novo Nordisk Inc., the 11th U.S. Circuit Court of Appeals recently affirmed summary judgment for a company that fired an employee who complained of a hostile work environment. An employee sold pharmaceuticals for Novo Nordisk for six years when she started working for a new boss. Her boss engaged in sexual banter and had discussions with her that she perceived as sexual in nature and offensive. For example, he asked everyone at his first district-wide staff meeting to name the celebrity with whom they would like to have sex. The employee was “speechless,” but she did not complain because she thought that once she got to know him, they would “get along well.” His sexual banter instead continued. Additionally, he constantly leered at her breasts and backside during ride-alongs. During these ride-alongs, he negatively reviewed her work and observed that her sales of certain drugs failed to meet his expectations.

She complained to the company’s human resources manager who interview four other employees and then determined that her assertions could not be corroborated. Ten days later, her manager placed her on a “coaching worksheet,” a tool used by Novo Nordisk to evaluate employee performance and identify skills that need improvement. After placement on a coaching worksheet, the employee had 60 days to improve the identified deficiencies.

She never had time to improve her work because her manager learned during a ride-along the next day that the employee had sponsored a dinner at the private residence of one of her physician clients where she arranged to pay for the meal as part of an informational training presentation. The party violated policies of the Pharmaceutical Research and Manufacturers of America.

Upon learning about the party, the manager recommended that the company terminate her. A representative of human resources investigated the dinner and determined that it violated company policy because its primary purpose was something other than an informational presentation. Human resources and the compliance department recommended the termination of the employee and other involved sales representative. Additionally, the Regional Business Director independently reviewed the findings from the investigation and terminated her and the other employee for violating company policy.

The employee filed a complaint against Novo Nordisk, alleging hostile work environment and retaliation. The district court granted summary judgment in favor of Novo Nordisk. The employee appealed.

On appeal, the 11th Circuit first addressed the hostile work environment claim. It noted that to successfully assert such a claim, the employee must perceive that the harassment is “sufficiently severe and pervasive to alter the terms or conditions of employment.” The 11th Circuit held that the boss’s conduct, alleged to have occurred on nine days over a period of five months, was not severe and pervasive.

Her claim of retaliation also failed for two reasons: placement on the employee improvement plan was not a materially adverse action, and Novo Nordisk articulated a legitimate, nondiscriminatory reason for the termination, which the employee failed to rebut as pre-textual. The fact that the violation of company rules was independently investigated and reviewed and the discharge recommendation came from HR and others was critical to the 11th Circuit affirmation of summary judgment. Additionally, the fact that a non complaining employee was also discharged was most helpful as well.

Common Sense Counsel: It is well settled that hostile work environment harassment occurs when unwelcome comments or conduct based on sex unreasonably interferes with an employee’s work performance or creates an intimidating, hostile or offensive work environment. Having a well written anti-harassment and professional conduct policy, annual company wide employee training on that policy, prompt and effective investigation of complaints and taking proper remedial action are all keys to a good HR risk reduction program. In this case Novo Nordisk did it right!

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at

Paycheck Fairness Bill on Senate Lame Duck Calendar

By Tommy Eden, Attorney

The Paycheck Fairness Act (S. 3772) that would amend the Fair Labor Standards Act (FLSA) to increase remedies for violations of the Equal Pay Act and make it more difficult to defend against such claims was reintroduced in September by Senate Majority Leader Harry Reid. The House has already passed its companion bill (H.R. 12) on Jan 9, 2009. The White House has urged the bill’s passage calling it "a common-sense bill that will help ensure that men and women who do equal work receive the equal pay that they and their families deserve.”

The Paycheck Fairness Act would do the following:

• Damages under the EPA will be expanded to include potentially unlimited compensatory and punitive awards.

• Employers will be prevented from relying on the “factor other than sex” affirmative defense in wage discrimination cases. An employer would be required to show that any wage discrepancy is caused by a bona fide factor other than sex, such as education, training and experience, and that this factor is job-related and consistent with business necessity. Rebuttal of a claim would require showing that an alternative employment practice exists that could achieve the same business purpose.

• Anti-retaliation provisions would protect employees who have made a complaint, filed a charge, testified or otherwise assisted in an investigation or proceeding related to an unfair wage complaint. It would also protect employees who have inquired about or discussed theirs or their coworkers’ wages.

• The requirement that employees work in the same establishment for wage comparison purposes would be eliminated. An employer’s establishment would include workplaces located in the same county or similar political subdivision of a state.

• Reinstate the Equal Opportunity Survey administered by the Office of Federal Contract Compliance Programs (OFCCP) which was abolished during the Bush Administration. This will allow the agency to gather certain employment information from federal contractors and subcontractors related to their Affirmative Action Programs, personnel activity and compensation.

The reintroduced Paycheck Fairness Act has been placed on the Senate calendar for November 17, 2010 during the lame duck congress. Supporters appear to be close to the filibuster-proof 60 votes needed to advance the bill in the Senate.

Common Sense Counsel: call your Senators and let them know your views.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at