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Friday, October 2, 2015

Caught with His Pants Down Justifies Termination



By: Thomas Eden

In October 2010 Horizon's Human Resources Manager in Puerto Rico, received an anonymous e-mail alleging that Vladimir Pérez had indecently exposed himself. Attached to the e-mail was a photograph depicting a man from the waist down fully exposing his lower-torso. The female manager also received what was purported to be the top half of the same photograph. That image depicted a man's upper torso and face, identifiable as Pérez. It appeared from the background that the photograph must have been taken in the dock's Marine Building, but was likely a year old. 

When confronted, Pérez admitted that the upper-torso photograph was of him, but denied that the lower-torso photograph depicted him. Horizon placed Pérez on paid administrative leave following the meeting. 

Over the next ten days, a manager interviewed several of Pérez's co-workers about the photographs. One co-worker admitted to taking both photographs and stated that they were of Pérez. Other Horizon employees either identified Pérez as the individual depicted in the lower-torso photograph or stated that they had heard about the photograph and had been told that it depicted Pérez. In addition, employees recounted a number of other occasions when Pérez had allegedly exposed himself to his co-workers in the workplace. Employees also described a general atmosphere of sexually-charged horseplay among Horizon's employees, in which Pérez participated.

The Company decided to terminate Pérez's employment, and he was informed by letter stating the “based on the evidence obtained, the company had determined that he had exhibited behavior on numerous occasions in strict violation of Horizon Lines' Code of Business Conduct Policy." Pérez sent e-mails requesting additional information and contesting the employment decision, but never alleged he himself had been subjected to sexual harassment.

Pérez later filed a sexual harassment charge with the Equal Employment Opportunity Commission, and then filed a complaint in federal court asserting sexual harassment and gender discrimination claiming that his female manager did the following to him: 1) attempted to drag him to the dance floor with force by taking him by the arm and pulling him; 2) placed his car key down her pants and did not return them for an hour while at a company softball game; 3) did a sea shell reading while touching his arms in a sexually suggestive fashion; and 4) requested that he bring to her office daily hot cornbread and pastries. 

The Federal Judge was not impressed and granted Horizon summary judgment dismissing on all claims and holding that no reasonable jury could conclude that those requests were sufficiently severe or objectively offensive to prove actionable. This week the First Circuit Court of Appeals agreed and affirmed the dismissal. 

Common Sense Counsel: for Alabama employers sexual harassment is no laughing matter. There is no substitute for a well drafted written policy against harassment of all types, distribution of the policy with a signed employee acknowledgment, awareness training on the policy and a procedure to investigate and resolve complaints. And do not allow romantic involvement between a manager and supervised employees under any circumstance to continue, or allow sexual horseplay in the workplace, or risk an equally embarrassing outcome. 

Tommy Eden is a partner working out of the Constangy, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA 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 teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com