By: Thomas Eden
Andrea
Vasquez, an emergency medical technician working for Empress Ambulance Service,
Inc. ("Empress"), was
subjected to on the job unwanted sexual overtures by another Empress employee,
a dispatcher. Vasquez promptly complained of her co-worker’s conduct and was
assured by supervisors that her
complaint would be investigated. The
supervisor asked her to put her complaint in writing, and she obliged, but
while she was doing it, the dispatcher walked by and figured out what was going
on. First he went to a male co-worker and asked the co-worker to lie for him.
The co-worker refused. Then the dispatcher printed out a bunch of fake text
messages indicating that Vasquez was coming on to him and turned his “evidence”
into the supervisor. Empress credited the false documents manufactured by the
dispatcher that purported to show Vasquez's eager agreement to a sexual
relationship, but refused to consider further contradictory evidence from
Vasquez. One of the messages displayed a “racy photo” that Vasquez supposedly
sent the dispatcher, though the photo did not contain Vasquez’s face. In reliance on these doctored photos and text
messages, Empress fired Vasquez.
Vasquez
subsequently filed suit in the Southern District of New York, alleging that
Empress had retaliated against her in violation of Title VII and New York State
Human Rights Law. The United States
District Judge dismissed her case, holding that the retaliatory intent of
Vasquez's co-worker, a low-level employee, could not be imputed to Empress and
that Empress consequently could not have engaged in retaliation. However, last
week the Second Court of Appeals based in NY overturned the dismissal finding that
agency principles permit the retaliatory intent of Vasquez's co-worker to be
imputed, as a result of Empress's shoddy and negligent harassment investigation.
Jean de La
Fontaine in 1679 authored a fable, entitled the “Monkey and the Cat”. According
to the fable, a mischievous monkey lured an unsuspecting cat to fetch chestnuts
from a burning hearth under the guise that they will share the chestnuts. In
the end the monkey stole the chestnuts, leaving the cat with nothing but burnt
paws. In referencing the fable, the Second Circuit Panel stated, “The employer
plays the credulous cat to the malevolent monkey and, in doing so, allows
itself to get burned – i.e., successfully sued”. The Second Circuit held that
an employer exposes itself to liability where it automatically credits one
employee’s accusations over another, refuses to consider contrary evidence
easily ascertained and does a shoddy investigation.
Common Sense Counsel: Employers should beware of being
too quick to believe an employee who accuses a co-worker of wrongdoing. If the
accuser has an illegal motive (such as discrimination or retaliation) and if
the employer is “negligent” in investigating before taking action against the
co-worker, then the employer could be legally responsible and left with burnt
paws.
Tommy Eden
is a partner working out of the Constangy, Brooks, 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. Some quotes contained in the column were taken from a
Constangy Blog Post by his law Partner Robin Shea. Tommy can be contacted at
teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com with link to full
case.
